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Home My WebLink About04/05/2007 AGENDA BACKUP3.a. Central Contra Costa Sanitary District March 28, 2007 TO: BOARD OF DIRECTORS FROM: MICHAEL SCAHILL, COMMUNICATION SERVICES MANAGER V SUBJECT: AWARD FROM MT. DIABLO UNIFIED SCHOOL DISTRICT A letter from the Mt. Diablo Unified School District dated March 6, 2007 was sent to my office, thanking Central Contra Costa Sanitary District for its support of the Delta Discovery Program. Representatives from CCCSD were invited to attend a March 13 meeting of the Board of Education to be publicly recognized. The letter in question was delivered on March 16. I called the School District and spoke to Pat Cleaver, head of Science curriculum for the district. He extended the invitation to attend a Board meeting on Tuesday, March 27, 2007. Elaine Boehme notified the Board of Directors of the award and Board members Lucey, Menesini and McGill accepted the invitation along with General Manager Jim Kelly. It was noted that 2,671 students and 101 teachers from the Mt. Diablo School District took part in the program during the past school year. At the meeting, Dow Chemical Company and the Dean and Margaret Lesher Foundation were also recognized for their support of the Delta Discovery Program. With some synchronicity, a package from the Marine Science Institute arrived on March 23. The package included a letter from the Institute's Development Director thanking Central Contra Costa Sanitary District's for our support of the Delta Discovery program and trips on the Delta aboard the RN Brownlee. The package also contained 134 thank you letters from Fifth grade students from Highland Elementary, Holbrook Elementary, Hidden Hills Elementary, Alamo Elementary and Calvary Temple School. Nine representative letters are attached. March 6, 2007 MT. DIABLO UNMED SCHOOL DISIRICT JAMES W. DENT EDUCATION CENT= 1936 Carlotta Drive Concord, California 94519.1397 (925)682.8000 Central Contra Costa Sanitary District c/o Michael Scahill, Community Affairs Manager 5019 Imhoff Place Martinez, California 94553 Dear Mr. Scahill, OFFICE OF BOARD OF EDUCATION On behalf of the Mt. Diablo Unified School District, I would like to thank the Central Contra Costa Sanitary District for your ongoing support of our Delta Discovery program. The funding the District provides has given our fifth grade students valuable hands -on learning about the water environment. To recognize your contributions and give you our personal thanks, the Mt. Diablo Board of Education and I invite you and others from the Central Contra Costa Sanitary District to attend the March 13, 2007, Board meeting. It begins at 7:30 p.m. in the Board Room at the Dent Center, 1936 Carlotta Drive, Concord. Please call my office at 682 -8000, ext. 4010 if you are not able to attend. We look forward to seeing you. Respectfu y, ary McHenry Superintendent M A R I N E SCIENCE INSTITUTE DISCOVERING OUR BAY Tuesday 20 March 2007 Michael Scahill Community Affairs Manager Central Contra Costa Sanitary District 5019 Imhoff Place Martinez, CA 94553 Dear Mr. Scahill, Inspiring respect and steu ardhip for the marine environment through experiential learnint.. Final Report: Central Contra Costa Sanitary District Grant Amount: $10,000 Classes Supported: 166 Students Served: 4,543 On behalf of the Marine Science Institute, I thank you for investing in the Delta Discovery Voyage program! Your partnership with us over the years has opened up the world of marine science to thousands of students and encouraged them to be stewards of our Delta and Bay. In this report, I will fill you in on all that the Delta Discovery Voyage Program has accomplished in Contra Costa County this year, as well as let you know what's been going on at the Marine Science Institute. Central Contra Costa Sanitary District's $10,000 donation supported 4,543 students from 166 classes who participated in 74 voyages this year. As you know, these students come from a wide variety of backgrounds and many students could not have participated with out your support. This program enabled students to spend 3.5 hours studying science. For many students, spending this amount of time studying science is unparalleled! The total budget for the program is below. Many teachers stated that they only get 45 minutes each week (and sometimes only every other week) to teach science to their students. One teacher told me that she felt lucky because she is a part of a pilot program testing a new science textbook and therefore gets 45 minutes three times a week to study science. She said it is difficult though, because most students were not taught any science from K through 4h grades and she must fill in everything they have not learned. The Delta Discovery Voyage program, she said, is therefore an incredibly important part of her students' science education. I have enclosed letters from the students who participated in this year's program. These letters indicate how much students have learned during this program. Enjoy them! The teacher and parent evaluations had a number of suggestions and comments. We were happy to see that again this year, comments were very positive. Comments included: 500 Discovery Parkway • Redwood Citv, CA 94063 -4746 • X0301 364 -21760 • FAX: 650, 364 -0410 • This was awesome! This can be a tough bunch of kids. Most of our students are extremely low income. This gave them an opportunity to learn to be good stewards. Thanks so much! • The instructors did a great job on the importance of water conservation. • I understand more about the way our drinking water is handled and taken care of In fact so much depends on us to do our part I'll start doing better for my part. • Things were also very clearly stated in the Activity Book • The children were shown the water treatment/use cycle in many ways, visually as well as verbally enforced Teacher's and parent's suggestions for the program included: • Errors in the student guide. Also, plankton & benthic weren't addressed in guide • A map of the delta/bay would be great for teachers and/or students (in the preparation guide) • Student guide was hard for them to understand • Talk more about how the wastetnon recyclables can be disposed of and what happens after it has been disposed. MSI's instructors truly enjoyed working out of Antioch. Some of the comments made by the instructors included: • It was a phenomenal time and a lot of fun • I now feel so much more comfortable teaching hydrology • There is sometimes a lack of buy -in, enthusiasm, and involvement by the teachers because it is a mandated program and they aren't always prepared. How can we change this? • I'm looking forward to visiting the reservoirs and other sites in the Delta MSI plans to address each of these suggestions and incorporate them into next year's program to improve it and make it the best program ever. Of particular interest is how we can gather more enthusiasm from the teachers. We are looking forward to working with you to accomplish this! 2006/2007 Goals The past year has been busy for the Marine Science Institute. We brought on several new board members and implemented a number of projects to help map out the future of MSI and ensure a sustainable way forward to provide programs for the next generation of students. As we look forward to the coming year we are excited to enact these projects. I am happy to share them with you. Ship Reclassification During the summer break, MSI hauled out our ship, the R/PRobert G. Brownlee, for routine maintenance as well as upgrades. With the help from some key fenders, we modified the Brownlee to meet U. S Coast Guard standards of a charter vessel. Notably the ship has a fresh new paint job, wider doors and an automated fire- fighting system in the engine room. This new classification is allowing MSI to create a new program called Discovery Ecotour which will offer the Brownlee to the general public as a ship for hire. Revenues from this program will support our educational school programs. While staying true to our mission we are excited about the opportunity to broaden our reach to include not just schools, but the entire Bay Area community. Virtual Voyage: Live on San Francisco Bay Three years in the making, this interactive distance learning program is the latest addition to our top- notch science programs. This innovative new program will allow classes of students to interact LIVE via an internet webcast with our marine educators out on the San Francisco Bay - all from their classroom! The program is now operational and we are excited to be offering it FREE of charge this fall to schools as part of the pilot phase of the project. The Virtual Voyage aims to broaden MSI's reach and serve low- income and land - locked schools that can't afford the cost of actually coming to the Bay to participate in the Discovery Voyage. We are so grateful to have a partnership with Central San. We appreciate the generosity of your organization very much and look forward to continuing this great partnership in the years ahead. Best wishes, Jeanine Borland Mann Development Director (650)364 -2760 x14 jeanine@sfbaymsi.org Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4.c. Type of Action: ADOPT RESOLUTION subject: ADOPT A RESOLUTION ACCEPTING AN OFFER OF DEDICATION FROM SHERMAN RANCH LLC FOR EASEMENTS SHOWN ON THE RECORDED FINAL MAP OF SUBDIVISION 8262 IN ALAMO AREA, ACCEPTING JOB 5416 PUBLIC SEWER IMPROVEMENTS AND AUTHORIZING STAFF TO RECORD THE RESOLUTION WITH THE CONTRA COSTA COUNTY RECORDER Submitted By: Initiating Dept.Xiv,: Molly Mullin, Engineering Assistant III Engineering /Environmental Services REVIEWED AND RECOMMENDED FOR BOARD ACTION: 'e Z- �-y )6-V f �w I M. Mullin J. Miyamoto -Mills C. Swanson A. Farrell lornes M. Kelly, eneral Manager ISSUE: A resolution of the Board of Directors is required to accept offers of dedication and public sewer improvements, and to authorize staff to record documents. RECOMMENDATION: Adopt a resolution accepting an offer of dedication and public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. FINANCIAL IMPACTS: These easements were acquired at no cost to the District. ALTERNATIVES /CONSIDERATIONS: None. BACKGROUND: The Board of Directors regularly accepts easements and public sewer improvements by resolution. The recommended resolution will accept easements shown on the recorded final map of Subdivision 8262 that are required for a recent public sewer extension off Serafix Rd in the Alamo area (as shown on Attachment 1). Staff has reviewed the final subdivision map, inspected the public sewer improvements, and determined that they are in compliance with District standards. RECOMMENDED BOARD ACTION: Adopt a resolution accepting an offer of dedication from Sherman Ranch LLC for easements shown on the recorded final map of Subdivision 8262 in Alamo, accepting public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. Page 1 of 2 ALAMO 9\ ZL , F RD Np RDr} -. � U \ t )NE VALLEY RD` r N LOCATION MAP N. T. S. Ico SERAFIX RD y � �ti .0 N.� n TRACT 8262 LEGEND: -- PRIVATE ROAD EASEMENT —�- EXISTING SEWER —�}- NEW SEWER SUBDIVISION BOUNDARY EASEMENT AREA- Parcel 2 Central Contra Costa Sanitary District I', J ACCEPT EASEMENT Attachment JOB 5416 - PARCEL 2 1 1 Page 2 of 2 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4.d. Type of Action: ADOPT RESOLUTION subject: ADOPT A RESOLUTION ACCEPTING AN OFFER OF DEDICATION FROM TAYLOR WOODROW HOMES FOR EASEMENTS SHOWN ON THE RECORDED FINAL MAP OF SUBDIVISION 8213 IN DANVILLE, ACCEPTING JOB 5420 PUBLIC SEWER IMPROVEMENTS, AND AUTHORIZING STAFF TO RECORD THE RESOLUTION WITH THE CONTRA COSTA COUNTY RECORDER Submitted By: Initiating Dept. /Div.: Molly Mullin, Engineering Assistant III Engineering /Environmental Services REVIEWED AND RECOMMENDED FOR BOARD ACTION: M. Mullin J. Miy moto -Mills C. Swanson 0�- A. Farrell I'Arnes M. Kelly, eneral Manager ISSUE: A resolution of the Board of Directors is required to accept offers of dedication and public sewer improvements, and to authorize staff to record documents. RECOMMENDATION: Adopt a resolution accepting an offer of dedication and public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. FINANCIAL IMPACTS: These easements were acquired at no cost to the District. ALTERNATIVES /CONSIDERATIONS: None. BACKGROUND: The Board of Directors regularly accepts easements and public sewer improvements by resolution. The recommended resolution will accept easements shown on the recorded final map of Subdivision 8213 that are required for a recent public sewer extension off West El Pintado Road in Danville (as shown on Attachment 1). Staff has reviewed the final subdivision map, inspected the public sewer improvements, and determined that they are in compliance with District standards. RECOMMENDED BOARD ACTION: Adopt a resolution accepting an offer of dedication from Taylor Woodrow Homes for easements shown on the recorded final map of Subdivision 8213 in Danville, accepting Job 5420 public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. Page 1 of 2 Page 2 of 2 Central Contra Costa Sanitary District ` BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4.e. Type of .fiction: ADOPT RESOLUTION Subject: ADOPT A RESOLUTION ACCEPTING AN OFFER OF DEDICATION FROM SMITH /PICKETT PROPERTIES LLC, FOR EASEMENTS SHOWN ON THE RECORDED FINAL MAP OF SUBDIVISION 8257, IN THE TOWN OF MORAGA, ACCEPTING JOB 5433 PUBLIC SEWER IMPROVEMENTS, AND AUTHORIZING STAFF TO RECORD THE RESOLUTION WITH THE CONTRA COSTA COUNTY RECORDER Submitted By: Molly Mullin Initiating Dept /Div.: Engineering/ Engineering Assistant III Environmental Services REVIEWED AND RECOMMENDED FOR BOARD ACTION: M. Mullin J. Miyamo o -Mills C. Swanson A. Farrell mes M. Kelly, eneral Manager ISSUE: A resolution of the Board of Directors is required to accept offers of dedication and public sewer improvements, and to authorize staff to record documents. RECOMMENDATION: Adopt a resolution accepting an offer of dedication and public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. FINANCIAL IMPACTS: These easements were acquired at no cost to the District. ALTERNATIVES /CONSIDERATIONS: None. BACKGROUND: The Board of Directors regularly accepts easements and public sewer improvements by resolution. The recommended resolution will accept easements shown on the recorded final map of Subdivision 8257 that are required for a recent public sewer extension off Camino Pablo in Moraga (as shown on Attachment 1). Staff has reviewed the final subdivision map, inspected the public sewer improvements, and determined that they are in compliance with District standards. RECOMMENDED BOARD ACTION: Adopt a resolution accepting an offer of dedication from Smith /Pickett Properties LLC for easements shown on the recorded final map of Subdivision 8257 in the Town of Moraga, accepting Job 5433 public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. Page 1 of 2 �0 tiFF4e4 A. co SITE MORAGAo�o LOCATION MAP T. S. �O' OBER 2 CT .i cq�� A del O LEGEND: PRIVATE ROAD EASEMENT —e EXISTING SEWER —�}- NEW SEWER SUBDIVISION BOUNDARY EASEMENT AREA- PARCEL 2 Central Contra Costa Sanitary District SUB 8257 1 r ACCEPT EASEMENT JOB 5433 — PARCEL 2 r / Attachment 1 Page 2 of 2 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4.f. Type of Action: ADOPT RESOLUTION subject: ADOPT A RESOLUTION ACCEPTING AN OFFER OF DEDICATION FROM BRADDOCK & LOGAN GROUP II, L.P., FOR EASEMENTS SHOWN ON THE RECORDED FINAL MAP OF SUBDIVISION 8104, IN THE TOWN OF DANVILLE, ACCEPTING JOB 5438 PUBLIC SEWER IMPROVEMENTS AND AUTHORIZING STAFF TO RECORD THE RESOLUTION WITH THE CONTRA COSTA COUNTY RECORDER Submitted By: Molly Mullin Initiating Dept. /Div.: Engineering/ Engineering Assistant III Environmental Services REVIEWED AND RECOMMENDED FOR BOARD ACTION: \0,4/ ap�'— M. Mullin J. Miyamoto -Mills C. Swanson A. Farrell James M. Kelly, General Manager ISSUE: A resolution of the Board of Directors is required to accept offers of dedication and public sewer improvements, and to authorize staff to record documents. RECOMMENDATION: Adopt a resolution accepting an offer of dedication and public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. FINANCIAL IMPACTS: These easements were acquired at no cost to the District. ALTERNATIVES /CONSIDERATIONS: None. BACKGROUND: The Board of Directors regularly accepts easements and public sewer improvements by resolution. The recommended resolution will accept easements shown on the recorded final map of Subdivision 8104 that are required for a recent public sewer extension off Oakgate Drive in the Town of Danville (as shown on Attachment 1). Staff has reviewed the final subdivision map, inspected the public sewer improvements, and determined that they are in compliance with District standards. RECOMMENDED BOARD ACTION: Adopt a resolution accepting an offer of dedication from Braddock & Logan Group II, L.P. for easements shown on the recorded final map of Subdivision 8104 in the Town of Danville, accepting Job 5438 public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. Page 1 of 2 DANVILLE SITE LAWRENCE RD Page 2 of 2 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4.g. Type of Action: ADOPT RESOLUTION Subject: ADOPT A RESOLUTION ACCEPTING AN OFFER OF DEDICATION FROM PH -SJ, LLC FOR EASEMENTS SHOWN ON THE RECORDED FINAL MAP OF SUBDIVISION 8351 IN PLEASANT HILL, ACCEPTING JOB 5440 PUBLIC SEWER IMPROVEMENTS AND AUTHORIZING STAFF TO RECORD THE RESOLUTION WITH THE CONTRA COSTA COUNTY RECORDER Submitted By: Molly Mullin Initiating Dept. /Div.: Engineering/ Engineering Assistant III Environmental Services REVIEWED AND RECOMMENDED FOR BOARD ACTION: M. Mullin J. Miyamoto -Mills C. Swanson A. Farrell ames M. Kelly, eneral Manager ISSUE: A resolution of the Board of Directors is required to accept offers of dedication and public sewer improvements, and to authorize staff to record documents. RECOMMENDATION: Adopt a resolution accepting an offer of dedication and public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. FINANCIAL IMPACTS: These easements were acquired at no cost to the District. ALTERNATIVES /CONSIDERATIONS: None. BACKGROUND: The Board of Directors regularly accepts easements and public sewer improvements by resolution. The recommended resolution will accept an easement shown on the recorded final map of Subdivision 8351 that is required for a recent public sewer extension off Crescent Plaza in Pleasant Hill (as shown on Attachment 1). Staff has reviewed the final subdivision map, inspected the public sewer improvements, and determined that they are in compliance with District standards. RECOMMENDED BOARD ACTION: Adopt a resolution accepting an offer of dedication from PH -SJ, LLC for easements shown on the recorded final map of Subdivision 8351 in Pleasant Hill, accepting Job 5440 public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. Page 1 of 2 Page 2 of 2 SITE BOYD RD HI L GEARY RD LOCATION MAP CRESCENT PLAZA ju ITI e EXISTING SEWER NEW SEWER SUBDIVISION BOUNDARY EASEMENT AREA -PARCEL 1 Central Contra Costa Sanitary District ACCEPT EASEMENT Attachment JOB 5440 - PARCEL 1 Page 2 of 2 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date April 5, 2007 No.: Consent Calendar 4.h. Type of Action: ADOPT RESOLUTION subject: ADOPT A RESOLUTION ACCEPTING AN OFFER OF DEDICATION FROM TAYLOR WOODROW HOMES, INC. FOR AN EASEMENT SHOWN ON THE RECORDED FINAL MAP OF SUBDIVISION 8163 IN THE ALAMO AREA, ACCEPTING JOB 5447 PUBLIC SEWER IMPROVEMENTS, AND AUTHORIZING STAFF TO RECORD THE RESOLUTION WITH THE CONTRA COSTA COUNTY RECORDER Submitted By: Molly Mullin Initiating Dept. /Div Engineering/ Engineering Assistant III Environmental Services REVIEWED AND RECOMMENDED FOR BOARD ACTION: 10,1111 M. Mullin J. Miyamoto -Mills C. Swanson A. Farrell }' mes M. Kelly, General Manager ISSUE: A resolution of the Board of Directors is required to accept offers of dedication and public sewer improvements, and to authorize staff to record documents. RECOMMENDATION: Adopt a resolution accepting an offer of dedication and public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. FINANCIAL IMPACTS: This easement was acquired at no cost to the District. ALTERNATIVES /CONSIDERATIONS: None. BACKGROUND: The Board of Directors regularly accepts easements and public sewer improvements by resolution. The recommended resolution will accept an easement shown on the recorded final map of Subdivision 8163 that is required for a recent public sewer extension off Danville Boulevard in the Alamo area (as shown on Attachment 1). Staff has review the final subdivision map, inspected the public sewer improvements, and determined that they are in compliance with District standards. RECOMMENDED BOARD ACTION: Adopt a resolution accepting an offer of dedication from Taylor Woodrow Homes, Inc., for an easement shown on the recorded final map of Subdivision 8163 in the Alamo area, accepting Job 5447 public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. Page 1 of 2 WALNUTICREEK RUDGEAR RD o �No�NA RD i ALAMO Z".\ S NE VALLEY RD gyp` SITE x LOCATION MAP / N. T. S. / ,e,&, / J� / / 'Cox/ / / SUB M 8163 �9 2� \�F l LEGEND:/ XAKI PRIVATE ROAD EASEMENT �— EXISTING SEWER —f}- NEW SEWER SUBDIVISION BOUNDARY N EASEMENT AREA - PARCEL 2 J Central Contra costa ACCEPT EASEMENT Attachment Sanitary District strict Arco JOB 5447 - PARCEL 2 1 Page 2 of 2 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4 . i . Type of Action: ADOPT RESOLUTION subject: ADOPT A RESOLUTION ACCEPTING AN OFFER OF DEDICATION FROM ROB AND JOYCE VANDERMEYDE, ACCEPTING PUBLIC SEWER IMPROVEMENTS, AND AUTHORIZING RECORDING OF THE RESOLUTION (JOB 5441, PARCEL 1 — CARL ROAD, LAFAYETTE) Submitted By: Molly Mullin, Initiating Dept. /Div.: Engineering/ Engineering Assistant III Environmental Services REVIEWED AND RECOMMENDED FOR BOARD ACTION: !/ U G'D A--- � T" t M. Mullin J. Miy oto -Mills C. Swanson A. Farrell ames M. Kelly, teneral Manager ISSUE: A resolution of the Board of Directors is required to accept offers of dedication and public sewer improvements, and to authorize staff to record documents. RECOMMENDATION: Adopt a resolution accepting an offer of dedication and public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. FINANCIAL IMPACTS: This easement was acquired at no cost to the District. ALTERNATIVES /CONSIDERATIONS: None. BACKGROUND: The Board of Directors regularly accepts easements and public sewer improvements by resolution. The recommended resolution will accept an easement and sewers installed during a recent sewer extension off Carl Road in Lafayette (as shown on Attachment 1). Staff has reviewed the easement documents, inspected the public sewer improvements, and determined that they are in compliance with District standards. RECOMMENDED BOARD ACTION: Adopt a resolution accepting an easement from Rob and Joyce Vandermeyde, accepting public sewer improvements constructed within the easement, and authorizing recording of the resolution with the Contra Costa County Recorder. Page 1 of 2 A SITE OLYMPIC eL WALNUT CREEK LAF ETTE 1 K LOCATION MAP N. T. S. CARL RD Q� APN 185 - 180 -007 Vandermeyde LEGEND: —e-- EXISTING SEWER —� NEW SEWER N EASEMENT AREA- PARCEL 1 Csntral Contra Costa Attachment Sanitary District ACCEPT EASEMENT 40c) JOB 5441 - PARCEL 1 1 Page 2 of 2 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4.3. Type of Action: ADOPT RESOLUTION subject: ADOPT A RESOLUTION ACCEPTING AN OFFER OF DEDICATION FROM GEORGE AND NANCY CORTESSIS, ACCEPTING PUBLIC SEWER IMPROVEMENTS, AND AUTHORIZING RECORDING OF THE RESOLUTION (JOB 5441, PARCEL 2 — CARL ROAD, LAFAYETTE) Submitted By: Molly Mullin Initiating Dept /Div.: Engineering/ Engineering Assistant III Environmental Services REVIEWED AND RECOMMENDED FOR BOARD ACTION: y y ev �Mv �)A - 4A--- ' M. Mullin J. iyamoto -Mills C. Swanson A. Farrell James M. Kelly, General Manager ISSUE: A resolution of the Board of Directors is required to accept offers of dedication and public sewer improvements, and to authorize staff to record documents. RECOMMENDATION: Adopt a resolution accepting an offer of dedication and public sewer improvements, and authorizing staff to record the resolution with the Contra Costa County Recorder. FINANCIAL IMPACTS: This easement was acquired at no cost to the District. ALTERNATIVES /CONSIDERATIONS: None. BACKGROUND: The Board of Directors regularly accepts easements and public sewer improvements by resolution. The recommended resolution will accept an easement and sewers installed during a recent sewer extension off Carl Road in Lafayette (as shown on Attachment 1). Staff has reviewed the easement documents, inspected the public sewer improvements, and determined that they are in compliance with District standards. RECOMMENDED BOARD ACTION: Adopt a resolution accepting an easement from George and Nancy Cortessis, accepting public sewer improvements constructed within the easement, and authorizing recording of the resolution with the Contra Costa County Recorder. Page 1 of 2 Page 2 of 2 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4.k. Type of Action: REJECT CLAIM subject: REJECT CLAIM FOR DAMAGES BY DANIEL AND EILEEN SCANLON REGARDING PROPERTY LOCATED AT 21 DIAS DORADOS, ORINDA, CALIFORNIA Submitted By: Randall M. Musgraves Initiating Dept /Div.: Administration REVIEWED AND RECOMMENDED FO BOARD ACTION: M graves Kent Alm �44 4 ames M. Kelly, eneral Manager ISSUE: The District received a claim for alleged damages due to land subsidence to the property located at 21 Dias Dorados, Orinda, California. The Board must take action on the claim. RECOMMENDATION: Reject the claim. FINANCIAL IMPACTS: There are no immediate financial impacts for rejection of the claim. ALTERNATIVES /CONSIDERATIONS: The alternative to this action is to negotiate a settlement with the claimant. BACKGROUND: The District received a claim on March 1, 2007 for alleged damages due to land subsidence to the property of Daniel and Eileen Scanlon for $1,000,000 and indemnity for other claimed damages. The claim, as with the Kaufman claim (25 Dias Dorados), states that in March 2006, a landslide began on 21 Dias Dorados and spread to the real properties at 25 Dias Dorados and 428 Minor Road, Orinda, California. The landslide is alleged to have occurred due to a broken sewer pipe in June 2006 as well as a leaking and broken sewer main. Staff reviewed this claim with the Board at the March 15, 2007 Board meeting in closed session. RECOMMENDED BOARD ACTION: Deny the claim submitted by Mr. Richard Reynolds, representing Daniel and Eileen Scanlon, and direct staff to send a rejection letter to the claimant and attorney. N :WDMINSUPWDMIN \DIST- SEC\Agendas \Scanlon Claim.doc Page 1 of 1 Central Contra Costa Sanitary District BOARD OF DIRECTORS ' POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4.1. Type of Action: REJECT CLAIM subject: REJECT CLAIM FOR DAMAGES BY CALVIN CANTRELL REGARDING PROPERTY LOSS AT THE DISTRICT TREATMENT PLANT Submitted By: Randall M. Musgraves Initiating Dept. /Div.: Administration REVIEWED AND RECOMMENDED FOR BOARD ACTION: 0A 4; � 1��,W, " sgraves Kent Alm mes M. Kelly, eneral Manager ISSUE: The District received a claim for alleged damages due to the theft of Mr. Cantrell's motorcycle from the District Treatment Plant property. The Board must take action on the claim. RECOMMENDATION: Reject the claim. FINANCIAL IMPACTS: There are no immediate financial impacts for rejection of the claim. ALTERNATIVES /CONSIDERATIONS: The alternative to this action is to pay the full amount of the claim or negotiate a settlement with the claimant. BACKGROUND: The District received a claim on March 14, 2007 for $6,500 from Mr. Calvin Cantrell for the theft of his motorcycle on December 28, 2006. Mr. Cantrell was a contracted employee from Turbo Machinery Repair, Inc. working for the Mechanical Maintenance section in the District's Operations Department. His last day working at the District Treatment Plant was December 29, 2006. Mr. Cantrell alleges the District has responsibility to protect his motorcycle while it was parked on District property. Mr. Cantrell stated that the presence of security cameras and guards and the District's denial of his request to park his motorcycle on the Treatment Plant site further demonstrated the District's responsibility. The facts obtained by staff do not support the claimant's allegations. Furthermore, the District has no legal responsibility or liability for his vehicle. RECOMMENDED BOARD ACTION: Deny the claim submitted by Mr. Calvin Cantrell and direct staff to send a rejection letter to the claimant. N: \ADMINSUP\ADMIN \DIST- SEC\Agendas \Cantrell Claim.doc Page 1 of 1 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4.m. Type of Action: CONFIRM PUBLICATION Subject: ADOPT A RESOLUTION CONFIRMING PUBLICATION OF A SUMMARY OF DISTRICT ORDINANCE NO. 241 - AN ORDINANCE AMENDING DISTRICT CODE SECTION 2.04.030, COMPENSATION OF BOARD MEMBERS Submitted By: Initiating Dept. /Div.: Administrative Department Elaine R. Boehme Secretary of the District REVIEWED AND RECOMMENDED FOR BOARD ACTION: 44 It-- E. Boehme ames M. Kelly, General Manager ISSUE: Section 6490 of the Health and Safety Code of the State of California provides that District ordinances shall be published once in a newspaper of general circulation within the District, and provides that an Order of the Board of Directors of the District to the effect that the ordinance has been published shall constitute conclusive evidence that publication has been properly made. RECOMMENDATION: Adopt a resolution confirming the publication of a summary of District Ordinance No. 241. FINANCIAL IMPACTS: None. ALTERNATIVES /CONSIDERATIONS: Establishes presumption that the ordinance was correctly published and therefore would be deemed procedurally valid by a court. BACKGROUND: A summary of District Ordinance No. 241 which was adopted by the Board at the meeting of February 15, 2007, and which amends District Code Section 2.04.030, Compensation of Board Members, was published in the Contra Costa Times on February 27, 2007. Proof of publication is attached. RECOMMENDED BOARD ACTION: Adopt a resolution confirming the publication of a summary of District Ordinance No. 241. N:\ADMINSUP\ADMIN \DIST- SEC \Ordinances \PP CONFIRM PUB ORD 241.doc Page 1 of 3 RESOLUTION NO. 2007- RESOLUTION CONFIRMING PUBLICATION OF A SUMMARY OF DISTRICT ORDINANCE NO. 241 AMENDING DISTRICT CODE SECTION 2.04.030, COMPENSATION OF BOARD MEMBERS WHEREAS, Section 6490 of the Health and Safety Code of the State of California provides that District ordinances shall be published once in a newspaper of general circulation within the District, and provides that an Order of the Board of Directors of the District to the effect that the Ordinance has been published shall constitute conclusive evidence that publication has been properly made. NOW, THEREFORE, be it resolved by the Board of Directors of the Central Contra Costa Sanitary District as follows: THAT a summary of District Ordinance No. 241 which was adopted on February 15, 2007, and which amends District Code Section 2.04.030, Compensation of Board Members, has been properly published once since its adoption in a newspaper of general circulation within Contra Costa County. PASSED AND ADOPTED by the Central Contra Costa Sanitary District Board of Directors this 5th day of April, 2007 by the following vote: AYES: Members: NOES: Members: ABSENT: Members: COUNTERSIGNED: Elaine R. Boehme Secretary of the Central Contra Costa Sanitary District, County of Contra Costa, State of California Approved as to Form: James A. Nejedly President of the Board of Directors, Central Contra Costa Sanitary District, County of Contra Costa, State of California Kenton L. Alm District Counsel Page 2 of 3 SUMMARY OF ORDINANCE NO. 241 AN ORDINANCE OF THE CENTRAL CONTRA COSTA SANITARY DISTRICT AMENDING DISTRICT CODE SECTION 2.04.030, COMPENSATION OF BOARD MEMBERS Ordinance No. 241 to increase g compen- $170 per an annual I to review effect on April 16, 2007. NOTE: The above Is a summary of major high- lights of the ordinance. A reading of the entire ordi- nance may be necessary to obtain a full under- standing of all of the changes. A certified copy of the full text of the ordi- nance may be read In the Secretary of the District's Office at 5019 Imhoff Place, Martinez and /or a copy may be obtained from the office. Adopted: February 15, 2007 AYES: Members :H o c k e t t, McGill, Meneslni, Lucey, Neledly NOES:Members:None ABSENT:Members:None s/s James A. Neledly President of the District Board of the Central Contra Costa San- itary District, County of Contra Costa, State of California COUNTERSIGNED: s/s Elaine R. Boehme Secretary of the Central Contra Costa Sanitary District, County of Contra Costa, State of California Approved as to Form: s/s Kenton L. Alm Kenton L. Alm District Counsel LegalCCT #2256659 Publish February 27, 2007 PROOF OF PUBLICATION (2015.5 C.C.P.) STATE OF CALIFORNIA County of Contra Costa I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested In the above - entitled matter. I am the Principal Legal Clerk of the Contra Costa Times, a newspaper of general circulation, printed and published at 2640 Shadelands Drive in the City of Walnut Creek, County of Contra Costa, 94598. And which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Contra Costa, State of California, under the date of October 22, 1934. Case Number 19764. The notice, of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to -wit: Feb 27, all in the year of 2007 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Executed alnut Creek, a l ornia. On this ay of February, 2007 .. .. ............................... Signature Contra Costa Times P O Box 4147 Walnut Creek, CA 94596 (925) 935 -2525 Proof of Publication of: (attached is a copy of the legal advertisement that published) Page 3 of 3 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Consent Calendar 4.n. Type of Action: CONFIRM PUBLICATION subject: ADOPT A RESOLUTION CONFIRMING PUBLICATION OF A SUMMARY OF DISTRICT ORDINANCE NO. 242 - AN ORDINANCE AMENDING TITLE 10 OF THE DISTRICT CODE (SOURCE CONTROL ORDINANCE) Submitted By: Initiating Dept /Div.: Administrative Department Elaine R. Boehme Secretary of the District REVIEWED AND RECOMMENDED FOR BOARD ACTION: ames M. Kelly, General Manager ISSUE: Section 6490 of the Health and Safety Code of the State of California provides that District ordinances shall be published once in a newspaper of general circulation within the District, and provides that an Order of the Board of Directors of the District to the effect that the ordinance has been published shall constitute conclusive evidence that publication has been properly made. RECOMMENDATION: Adopt a resolution confirming the publication of a summary of District Ordinance No. 242. FINANCIAL IMPACTS: None. ALTERNATIVES /CONSIDERATIONS: Establishes presumption that the ordinance was correctly published and therefore would be deemed procedurally valid by a court. BACKGROUND: A summary of District Ordinance No. 242 which was adopted by the Board at the meeting of February 15, 2007, and which amends Title 10 of the District Code (Source Control Ordinance), was published in the Contra Costa Times on March 2, 2007. Proof of publication is attached. RECOMMENDED BOARD ACTION: Adopt a resolution confirming the publication of a summary of District Ordinance No. 242. N:WDMINSUPWDMIN \DIST- SEC \Ordinances \PP CONFIRM PUB ORD 242.doc Page 1 of 3 RESOLUTION NO. 2007- RESOLUTION CONFIRMING PUBLICATION OF A SUMMARY OF DISTRICT ORDINANCE NO. 242 AMENDING TITLE 10 OF THE DISTRICT CODE (SOURCE CONTROL ORDINANCE) WHEREAS, Section 6490 of the Health and Safety Code of the State of California provides that District ordinances shall be published once in a newspaper of general circulation within the District, and provides that an Order of the Board of Directors of the District to the effect that the Ordinance has been published shall constitute conclusive evidence that publication has been properly made. NOW, THEREFORE, be it resolved by the Board of Directors of the Central Contra Costa Sanitary District as follows: THAT a summary of District Ordinance No. 242 which was adopted on February 15, 2007, and which amends Title 10 of the District Code (Source Control Ordinance), has been properly published once since its adoption in a newspaper of general circulation within Contra Costa County. PASSED AND ADOPTED by the Central Contra Costa Sanitary District Board of Directors this 5th day of April, 2007 by the following vote: AYES: Members: NOES: Members: ABSENT: Members: COUNTERSIGNED: Elaine R. Boehme Secretary of the Central Contra Costa Sanitary District, County of Contra Costa, State of California Approved as to Form: James A. Nejedly President of the Board of Directors, Central Contra Costa Sanitary District, County of Contra Costa, State of California Kenton L. Alm District Counsel Page 2 of 3 PROOF OF PUBLICATION (2015.5 C.C.P.) STATE OF CALIFORNIA County of Contra Costa I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above - entitled matter. I am the Principal Legal Clerk of the Contra Costa Times, a newspaper of general circulation, printed and published at 2640 Shadelands Drive in the City of Walnut Creek, County of Contra Costa, 94598. And which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Contra Costa, State of California, under the date of October 22, 1934. Case Number 19764. The notice, of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to -wit: Mar 2, all in the year of 2007 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Execu�May Walnut Qmek;-eatifornia. On t of arch, 2007 �� --� Signature Contra Costa Times P O Box 4147 Walnut Creek, CA 94596 (925) 935 -2525 Proof of Publication of: (attached is a copy of the legal advertisement that published) SUMMARY OF ORDINANCE NO. 242 AN ORDINANCE OF THE CENTRAL CONTRA COSTA SANITARY DISTRICT AMENDING TITLE 10 OF THE DISTRICT CODE (SOURCE CONTROL ) No. 242 the new cone provisions to Incorporate multiple modifications throughout the Title. The amend - merits to Title 10 Incorpo- rate the mandatory and certain voluntary ele- as the re- (SSMP), and clarify vari- ous conditions of the or- dinance. NOTE: The above is a summary of major high- lights of the ordinance. A reading of the entire ordi- Place. Martinez and /or a copy may be obtained from the office. Adopted: February 15, 2007 AYES: Members:Hockett, McGill, Menesini NOES:Members:Lucey, Neledly ABSENT: Members: None s/s James A. Neledly President of the District Board of the Central Contra Costa Sanitary District, County of Contra Costa, State of California COUNTERSIGNED: s/s Elaine R. Boehme Secretary of the Central Contra Costa Sanitary District, County of Contra Costa, State of California Approved as to Form: s/s Kenton L. Alm District Counsel Legal CCT #262777 Publish March 2, 2007 Page 3 of 3 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Bids and Awards 6.a. Type of Action: AWARD CONSTRUCTION CONTRACT /AUTHORIZE EXECUTION OF CONTRACT DOCUMENTS Subject: AWARD A CONSTRUCTION CONTRACT AND AUTHORIZE THE GENERAL MANAGER TO EXECUTE CONTRACT DOCUMENTS WITH GSE CONSTRUCTION COMPANY, INC., THE LOWEST RESPONSIVE BIDDER, FOR THE LOWER ORINDA PUMPING STATION RENOVATION — PHASE 2, DISTRICT PROJECT 5944 Submitted By: Initiating Dept. /Div.: Alexandr Mestetsky, Associate Engineer Engineering / Capital Projects REVIEWED AND RECOMMENDED FOR BOARD ACTION: V,��J A A. Mesta ky A. Antkowiak t ' cki A. Farrell ames M. Kelly, General Manager ISSUE: On March 26, 2007, three (3) sealed bids were received and opened for the construction of the Lower Orinda Pumping Station Renovation - Phase 2, District Project 5944. The Board of Directors must award the contract or reject bids within 50 days of the bid opening. RECOMMENDATION: Award a construction contract and authorize the General Manager to execute the Contract Documents. FINANCIAL IMPACTS: Approximately $1,008,300 including design, bid price, contingency, and construction management. ALTERNATIVES /CONSIDERATIONS: Reject all bids, which is not recommended. BACKGROUND: The District's 1989 Pumping Station Master Plan identified the need to renovate the Lower Orinda Pumping Station. The Master Plan recommended that the mechanical and electrical equipment be updated, reliability improved, and capacity increased to meet projected wet - weather flows. The District awarded a construction project for the Lower Orinda Pumping Station in the amount of $5,696,000 to Pacific Mechanical Corporation (PMC) on December 4, 2003. Construction on the Lower Orinda Pumping Station was substantially completed in January 2006. The design for the Lower Orinda Pumping Station Renovation Project was completed approximately four -years ago. In 2004, the District experienced an overflow at the San Ramon Pumping Station. In response to this overflow, the District prepared an emergency plan and liability study. Based on the results of this study, the District had requested a number of upgrades /improvements to the Lower Orinda Project that would NAPESUP \Cbradley \Position Papers\Mestetsky \5944 -Award PP.doc Page 1 of 6 POSITION PAPER Board Meeting Date: April 5, 2007 subject: AWARD A CONSTRUCTION CONTRACT AND AUTHORIZE THE GENERAL MANAGER TO EXECUTE CONTRACT DOCUMENTS WITH GSE CONSTRUCTION COMPANY, INC., THE LOWEST RESPONSIVE BIDDER, FOR THE LOWER ORINDA PUMPING STATION RENOVATION — PHASE 2, DISTRICT PROJECT 5944 enhance the station's reliability, maintainability, and safety. These requests include such items as bypass and soft start capabilities on the 250 -hp variable frequency drives for the wet - weather pumps, isolation gates for the new grinders, a building security system, emergency lighting, safety guard rail, and other miscellaneous items. These items would normally have been addressed as change orders to the construction contract. Staff did not pursue the normal procedure because the project was significantly behind schedule and there was a potential claim related to the emergency standby generator and control panel. Given the situation, staff recommended that the District design and bid a separate project to implement the upgrades requested. To improve operational efficiency, the installation of slide gate operators at the San Ramon Pumping Station is included as part of this project. Similar operators are already being installed at the Lower Orinda Station under this contract. The heavy rains during the later part of 2005 resulted in erosion of a creek bank immediately adjacent to an existing backside access road to the Lower Orinda Pumping Station. The District Board awarded the creek bank repair project in September of 2006. Construction was completed in December 2006. The creek bank repairs were previously completed and the costs are included in the total cost of this project. District staff, Whitley Burchett and Associates, DTN Engineers Inc., and TJC and Associates prepared the plans and specifications for the project. The Engineer's estimate for construction of the Lower Orinda Pumping Station is $500,000. This project was advertised on March 2 and 7, 2007. Three (3) sealed bids ranging from $579,000 to $641,100 were received and publicly opened on March 26, 2007. The Engineering Department conducted a technical and commercial review of the bids and determined that GSE Construction Company, Inc. is the lowest responsive bidder with a bid amount of $579,000. A summary of bids received is shown in Attachment 2. The District will administer the construction contract and will provide contract administration, inspection, survey, office engineering, and submittal review. Whitley Burchett and TJC performed satisfactorily during the design, and will provide office engineering support during construction. The additional allocation of funds required to complete this project, as shown in Attachment 3, is $878,300. The total cost of the Lower Orinda Pumping Station Renovation - Phase 2 is anticipated to be $1,008,300. The Lower Orinda Pumping Station Renovation - Phase 2 Project is included in the fiscal year 2006 -2007 Capital Improvement Budget (CIB) on pages CS -91 and CS -92. NAPESUP\Cbradley \Position Papers \Mestetsky \5944 -Award PP.doc Page 2 of 6 POSITION PAPER Board Meeting Date: April 5, 2007 subject: AWARD A CONSTRUCTION CONTRACT AND AUTHORIZE THE GENERAL MANAGER TO EXECUTE CONTRACT DOCUMENTS WITH GSE CONSTRUCTION COMPANY, INC., THE LOWEST RESPONSIVE BIDDER, FOR THE LOWER ORINDA PUMPING STATION RENOVATION — PHASE 2, DISTRICT PROJECT 5944 Staff has conducted a cash -flow analysis of the Collection System Program authorization and concluded that adequate funds are available for this project. The environmental effects of this project were addressed in the Lower Orinda Pumping Station Improvement Project Negative Declaration approved by the Board of Directors on September 2, 1999. RECOMMENDED BOARD ACTION: Award a construction contract in the amount of $579,000 for the construction of the Lower Orinda Pumping Station Renovation - Phase 2 Project, District Project 5944, to GSE Construction Company, Inc., the lowest responsive bidder, and authorize the General Manager to execute the Contract Documents. NAPESUMbradley \Position Papers \Mestetsky \5944 -Award PP.doc Page 3 of 6 O O ORINDA r: COUNTRY . ClUB P,qg� Pgko RD EL N ro LOMA LOWER ORINDA PUMPING STATION 18 MINER ROAD ORINDA, CA 94563 �O r sos� Aq 0 i° FAST LOCATION MAP �,�ooD Z �7 ° N.T.S. e N o ➢c T P N T UI O Y Central Contra Costa Drawing No. T Sanitary District LOWER ORINDA PUMPING STATION y RENOVATION PROJECT, DP 5944 PROJECT LOCATION Page 4 of 6 ATTACHMENT 2 LOWER ORINDA PUMPING STATION RENOVATION - PHASE 2 PROJECT DISTRICT PROJECT 5944 SUMMARY OF BIDS PROJECT NO. DP 5944 DATE: MARCH 26, 2007 PROJECT NAME: LOWER ORINDA PUMPING STATION RENOVATION - PHASE 2 LOCATION: ORINDA, CALIFORNIA ENGINEER EST.: $500,000 No BIDDER BID PRICE Name & address 1 GSE Construction $579,000 1020 Shannon Court Livermore, CA 94550 925 - 447 -0292 2 NCCI, Inc. $588,305 Pier 26 The Embarcadero San Francisco, CA 94105 415- 974 -0947 3 Aztec Consultants $641,100 2021 Omega Road, Suite 200 San Ramon, CA 94583 925 - 837 -1050 BIDS OPENED BY /s/ Elaine Boehme DATE March 26, 2007 SHEET NO. 1 OF 1 NAPESUP\Cbradley \Position Papers \Mestetsky \5944 -Award PP.doc Page 5 of 6 ATTACHMENT 3 LOWER ORINDA PUMPING STATION RENOVATION - PHASE 2 PROJECT DISTRICT PROJECT NO. 5944 POST -BID / PRECONSTRUCTION ESTIMATE No. Item Description 1 CONSTRUCTION a. Construction Contract $ b. Contingency at 20% $ c. Programming (SCADA) $ TOTAL CONSTRUCTION $ 2 CONSTRUCTION MANAGEMENT a. District Forces - Construction Management and Inspection $ - Construction Administration / Engineering $ - Community Relations $ - Operations Department $ - Survey $ - Record Drawings $ SUBTOTAL $ b. Consultant / Construction Support Services - Design Engineer (Whitley Burchet and Associates) $ - Structural Engineer (Tic) $ - Materials Testing $ SUBTOTAL $ TOTAL CONSTRUCTION MANAGEMENT $ 3 TOTAL CONSTRUCTION PHASE COST $ 4 TOTAL PREBID EXPENDITURES $ 5 TOTAL DESIGN AND CONSTRUCTION MANAGEMENT COST $ 6 TOTAL ESTIMATED PROJECT COST $ 7 LOWER ORINDA ACCESS ROAD STABILIZATION -COMPLETED $ 8 FUNDS AUTHORIZED TO DATE $ 9 ALLOCATION NEEDED TO COMPLETE PROJECT $ Percent of Estimated Amount Construction Cost 579,000 115,800 30,000 724,800 50,000 20,000 2,500 10,000 1,000 2,000 85,500 40,000 3,000 2,000 45,000 130,500 855,300 153,000 283,500 1,008,300 122,000 252,000 878,300 NAPESUMbradley \Position Papers \Mestetsky \5944 -Award PP.doc Page 6 of 6 100%1 12 %1 6% 18% 118% 21% 39% 139% Agenda Item 7.a.2) Board Meeting of April 5, 2007 Announcements a) Advertisement of the UPS Back up System, DP 7222 The Purchasing Division will competitively bid the Uninterruptible Power Supply (UPS) backup system for improvement to the existing Plant Control System UPS at the Solids Conditioning Building. District Project # 7204, Plant Control System Improvements, will fund the estimated cost of the equipment, which is $25,000. It is anticipated that bids will be returned by April 30, 2007, and a position paper will be brought to the Board for authorization to purchase in May. b) Advertisement of the Household Hazardous Waste Services Request for Approval The current contract with Phillip Services Corporation, who provides household hazardous waste transportation, disposal, and supplemental labor, will expire on September 16, 2007. District staff anticipates advertising a Request for Proposal (RFP) by May 2007, for these services. It is anticipated that proposals will be returned by June 2007. Subsequently, a position paper will be brought to the Board for authorization to purchase in July 2007. The draft RFP was reviewed by the Board Household Hazardous Waste Committee. c) Treatment Plant Safety Enhancements (Phase 3 Project) DP 7263 Safety is one of the District's highest priorities. Safety improvements at the treatment plant are identified by the Plant's safety suggestion program, safety audits, and safety inspections. Through this process, several improvements have been identified. The improvements are designed to improve the safety at the plant by improving fall protection and providing improved access to equipment at various locations throughout the plant. This project will be advertised on April 13th and 18th. The bids will be opened on May 15, 2007. The construction cost is currently estimated at $250,000 (see attached Final Design Cost Estimate). d) Cost of Living Allowance Increase The CPI for Urban Wage Earners for the period Feb. to Feb. is 3.2 %. All employees' increases will be reflected on their May 31 st paychecks. e) Status of getting EBRPD out to walk the Shell Pipeline The Real Estate Committee requested staff to work with the East Bay Regional Park District ( EBRPD) to determine their level of interest in the surface portion of the Shell Pipeline Right -of -Way, and requested the General Manager to contact EBRPD Board Members Radke and Lane to pursue the issue. EBRPD is interested in the Shell Pipeline right of way from St. Mary's Road near Lafayette Reservoir to Redwood Regional Park ( -4 miles). The EBRPD has requested that the District send them a letter granting them permission to access the easements so that they can perform a physical inspection of the right of way to determine if the right -of -way is suitable for a trail. The letter granting EBRPD access has been sent (see attached). Copies of the letter have been sent to the EBRPD's General Manager, and Board Members Radke and Lane. The District's General Manager will call Board Members Radke and Lane to indicate the District's interest in pursuing this matter, as it appears to be for the greater public good. f) San Ramon Emergency Exercise The City of San Ramon and the Central Contra Costa Sanitary District conducted an emergency exercise at the Larwin Pump Station on Mangos Drive on the morning of Wednesday, March 28. Along with CCCSD crews, the other agencies that took part in the exercise were the San Ramon Police Department, the Fire District, Public Works and Safety Departments. The scenario was a sewer overflow at the pump station and the emergency response. After notification by San Ramon dispatch, our crews arrived on site; sealed storm drains; set up a Vactor truck; and set up a by -pass at the pump station. The exercise lasted just over an hour. The exercise was a success, and all four goals (practice the incident command system, providing public information at the site, demonstrate equipment used in the response was adequate, and demonstrate to the residents that the agencies are prepared to respond to a future event) were accomplished. g) Strategic Planning District Management and Counsel met on April 3rd to analyze the District's strengths and needs to meet external challenges and opportunities the District currently faces. The results of this meeting and the impact it might have on the District's Strategic Plan will be presented at an upcoming Board meeting for the Board's information, input, and direction. h) Earth Day Announcement The District will take part in the Environmental Fair at the John Muir Earth Day Festival on Saturday, April 21 from 10 a.m. to 4 p.m. at the John Muir National Historic Site located at 4202 Alhambra Avenue in Martinez. The District will have a display booth where staff will be on hand to answer questions and provide handout material about various pollution prevention topics, including proper disposal of household hazardous waste. i) Status of easement negotiations for North Orinda Sewer Renovations Phase 2.1 (Tarry LaneNan Tassel Lane), DP 5968 Of the six properties that were covered by the "Resolution of Necessity" for eminent domain current status is as follows: - Three have been settled with signed documents in hand (21 Snowberry Lane - the owner attended the Board Meeting and the Resolution of Necessity was adopted, 10 Katrina Court and Davis -6 Crane Court); - One has been tentatively settled with signing pending the property owner's legal review of the Agreements (80 Tarry Lane); - One property owner located at 84 Tarry Lane is considering the District's current offer; and - Our eminent domain attorney Pamela Schock Mintzer of Wendel, Rosen, Black and Dean, is working with the "successor trustees" for the property at 76 Tarry Lane to clarify ownership, in order for negotiations to proceed. The "Complaint in Eminent Domain" has been filed for this property in the case that ownership cannot be resolved in a timely manner. The Board will recall that the owner of 21 Snowberry Lane spoke during the hearing on the Resolution of Necessity. As noted above, the District has obtained the needed permanent and temporary easements for a monetary settlement and "in- kind" improvements to her driveway and property line fence. Edgar Lopez, who will be the Resident Engineer for construction of the project, was instrumental in the final discussion with the owner of 21 Snowberry Lane that resulted in the settlement, and Edgar will be the District representative at the project to ensure that if the owner has concerns, they are quickly and appropriately addressed. j) Mitigated Negative Declaration for Construction of the A -Line Relief Interceptor Phase 2A Proiect This is a joint project with the City of Concord for construction, which includes a new gravity sewer from Concord's Pump Station site. A draft Mitigated Negative Declaration (MND) was released for public review on April 2, 2007. The public review period will end on May 2, 2007. A copy of the MND will be provided to Board members at the April 5, 2007 meeting. A public hearing to consider approval of the MND and the project (for CEQA and permitting purposes) is tentatively scheduled for the May 24, 2007 Board meeting. k) Alhambra Valley Trunk Sewer Proiect Phase 2 Staff expects the National Park Service (NPS) to release the draft Environmental Assessment (EA) for public review in early April. A copy of the draft EA will be provided to Board members when it is released. The public review period will last 30 days. The NPS will hold a public meeting to receive comments to the draft EA about 2 weeks after the release date. When the EA process is completed, provided the NPS Regional Director finds there are no significant impacts resulting from the project, the District and the NPS will enter into a License Agreement for construction and maintenance of the trunk sewer across the NPS property. Staff expects the Agreement will be completed in time to allow the construction of the trunk sewer this summer. Staff will continue to update the Board as new information becomes available. DP 7263 Treatment Plant Safety Enhancements, Phase 3 Final Design Cost Estimate Installation Description City Unit Unit Cost Factor Total Division 1 Bid Allowance 1 ea $15,000.00 1.00 $15,000.00 Subtotal - Site 2 $15,000.00 Contingency 0.00% $0.00 Total - Site 2 $15,000.00 Site 1- Platforms Steel 150 if $35.00 2.40 $12,600.00 Grating 100 sf $25.00 1.20 $3,000.00 Handrail (Steel) 35 If $50.00 1.00 $1,750.00 Gates 2 ea $150.00 1.00 $300.00 Ladder 30 If $75.00 1.00 $2,250.00 Electrical (New & Exist. Lights) 1 Is $3,000.00 1.00 $3,000.00 Coating (3 mandays +$300 mat) 1 Is $3,840.00 1.00 $3,000.00 Subtotal - Site 1 $25,900.00 Contingency 10.00% $2,590.00 Total - Site 1 $28,490.00 Site 2- Handrail New /Repair Minor Spot Repairs 9 ea $350.00 1.00 $3,150.00 Large Spot Repairs 3 ea $1,000.00 1.00 $3,000.00 New Rail (Aluminum) 112 If $90.00 1.00 $10,080.00 Signs 2 ea $26.00 1.70 $88.40 Subtotal - Site 2 $16,318.40 Contingency 10.00% $1,631.84 Total - Site 2 $17,950.00 Sites 3 & 4 - Hatches Demo 1 Is $1,200.00 1.00 $1,200.00 DAFT Hatches 2 ea $2,800.00 1.70 $9,520.00 West Gallery Hatches 1 ea $3,500.00 1.70 $5,950.00 Ladder 15 If $75.00 1.00 $1,125.00 Ladder Fall Protection 3 ea $250.00 1.70 $1,275.00 Subtotal - Site 3 & 4 $19,070.00 Contingency 10.00% $1,907.00 Total - Site 3 & 4 $20,980.00 Site 5- Electrical Vaults Box Extensions 10 ea $1,200.00 1.00 $12,000.00 Tread PL Covers 3/8" 105 sf $20.00 1.70 $3,570.00 Signs 10 ea $26.00 1.70 $442.00 Subtotal - Site 5 $16,012.00 Contingency 10.00% $1,601.20 Total - Site 5 $17,610.00 Site 6- Tunnel Fan Extension Box Extensions Concrete 3.5 cy $1,000.00 1.00 $3,500.00 Curb & Flashing 1 ea $250.00 1.00 $250.00 Duct Extensions 2 ea $500.00 1.00 $1,000.00 Plate Alum. Covers 3/8" 22 sf $20.00 1.70 $748.00 Plate Alum. Covers 1/2" 10 sf $27.00 1.70 $459.00 Duct 14 inch 12 If $80.00 1.30 $1,248.00 Tubeaxial fan 1 ea $1,200.00 1.70 $2,040.00 Electrical 1 Is $5,000.00 1.00 $5,000.00 Subtotal - Site 6 $14,245.00 Contingency 10.00% $1,424.50 Total - Site 6 $15,670.00 Site 7- Grading at AM Tanks Landscape Timbers 50 If $3.00 1.70 $255.00 Curb 1 ea $300.00 1.00 $300.00 Import fill /gravel 410 cy $60.00 1.00 $24,600.00 Fill under Walkway 50 cy $75.00 1.00 $3,750.00 Cleanout Riser 1 ea $250.00 1.00 $250.00 Breather Pipe Reloc 1 ea $150.00 1.00 $150.00 Subtotal - Site 7 $29,305.00 Contingency 10.00% $2,930.50 Total - Site 7 $32,240.00 Site 8- Clarifier Brackets Bracket 8 ea $800.00 1.00 $6,400.00 Cane Bolt 8 ea $20.00 1.70 $272.00 Subtotal - Site 8 $6,672.00 Contingency 10.00% $667.20 Total - Site 8 $7,340.00 Subtotal $155,280.00 Overhead (Bonds, Ins, Etc) 10% $15,528.00 Contractor OH & Profit 10 % $159528.00 Total Cost $186,336.00 J� Central Contra Costa Sanitary District 5019 ttntitff Place, Martinez, CA 94553-4392 (925) 228 -9500 - www.centralsan.6% March 29, 2007 East Bay Regional Park District Attn: Jim Townsend Trails Development Program Manager PO Box 5381 Oakland, CA 94605 -0381 Dear Mr. Townsend: RE: EBRPD's Interest in Former Shell Oil 10" Products Pipeline FAX: (925) 228 -4624 JAW S Af. KELL Y Gewrr,tl Alwiul;rr KEN l UN L.. I L Al ('ounA e! I rr the Di.ctric t ( 510) 808 -2000 ELAINE. R. BOENA1E. Seeretrrrr n(the District Central Contra Costa Sanitary District (CCCSD) was pleased to receive your February 13, 2007, letter indicating that the East Bay Regional Parks District (EBRPD) has a potential interest in the right -of -way for a portion of the former Shell Oil 10" Products Pipeline owned by CCCSD. Please accept this letter as our approval for EBRPD staff to access our easements in the vicinity you indicated in your letter (from St. Mary's Road to Redwood Regional Park) to determine if this section of right -of -way would be suitable for a trail. Due to the restrictions in some of the easement documents, we are requesting that a CCCSD representative accompany you on the site visits. We are hopeful that the pipeline right -of -way will be suitable for a trail, but I would caution you that, while CCCSD holds title to the right -of -way associated with this portion of the Shell Pipeline for purposes of access for maintenance and repair, we do not believe we could convey the surface rights to you directly for use as a trail without notifying and negotiating with the affected property owners. However, since this swath of right -of -way (typically 20 -25' wide) exists and construction over it is prohibited, it creates the unique opportunity of an open corridor in an urban area. We want to work with you to determine if the idea of utilizing the right -of -way for a trail is desirable to EBRPD, and if so, is it feasible from a right -of -way perspective. If EBRPD does determine that some portion of the right -of -way would be suitable for a trail, we would cooperate with EBRPD to make the existing right -of -way documents available. Based on the review of the documents we could then jointly determine the best way to approach the affected property owners. We are also continuing to market the pipeline itself to potentially interested private parties. If such a party comes forward, we would explore the concept of joint use of the right of way with EBRPD and the interested party. We plan to conclude this marketing process in the next several months. We are looking forward to further exploring this potentially exciting opportunity. Please contact Melody LaBella at (925) 229 -7370 to make arrangements for a site visit and /or to review the 0 h I Mr. Jim Townsend March 29, 2007 Page 2 of 2 right -of -way documents visiting the site. Sincerely, Ann Farrell Director of Engineering AEF;rlh Please call me at (925) 229 -7302 if you have any questions prior to cc: Jim Kelly — General Manager, CCCSD Pat O'Brien — General Manager, EBRPD Beverly Lane — Board Member, EBRPD Ted Radke — Board Member, EBRPD Bcc: Melody LaBella Ann Farrell N: \ENVRSEC\Admin\Farrell \Shell Pipeline & Row Offering \Response to EBRPD Ltr 3- 07.doc m L (a) r c L 3 0 J m t FM M�d Q) m L (a) c 0 ,L^ V P O� v d �o L am m c t U m A.—A U) / 0 6AW co -� c i c kv -4-0 V r� ■ 0 >1 �J 0 0 N LO CL U 0 c 0 cu U L 9 W U 0 LL 0 U cu cn U ca L 0 L1 • • • • m m c ♦ S S O O O 0 o � cn� rh Cc rMO, CD �. rmPk (n (n O O O CT CD ♦� V/ CD CD T ' 1 0 r.i. 3 o 0 ^O CD o rF mn 0 0 cn rF- Sty F� w o �n �o y i r• O i �o ON-; c%• v �L N 0 L i 0 (M) 13 O O LL P-4 - 0= b � A 0 U� y O 0 �. 0 «+ RS w� ago 0 0 0 w � o� � N a� y ees 4 -0 U*) C 0 U U) c� to � � U - ♦--� .� N CU -1-a U U) Ui .� ago 0 0 0 w � o� � N a� y ees �o a w 0� v W rMIL rMIL v 0 •J =r rMIL v 0 m y fmilL (D 0 0 CL rh MN 0 CD Q Q �- n Q CD �- � � �-CD C CD m0 CL C 10 -32) c Q Q CD M CD W 3 . 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U. cn O cu a) 0 0 0 U) U U U C N N D a a U U U 06 0 U U. • • • • • C� C7 O D ov N N C� O O �, � CD � CD 0 O 3 3 _. - _. � 3 FD CD — � — CD CD CD �7 N CD Cn C� CD C: --4 (n O -0 ° -0 - CD o' Cn w, O cn CD O � O CD - � I CD CD CD _. n O 0 CD CD CD C� I O 3 -n cn 0- CD CD CD x' CD o CD o CD � W o � o' cn � I A I CD I C. T C , — CD ic CD 0 CD Cl) ci =r CD a 01 bd N 00 O O � �c C � a � y O 3 cn m e Z O -0 O co - c: C: c: - Q �-3 0 3 m 7D r 4W 0 0 x0 O C�DCD C cm 0 ,{ O �-�C� O mw�O m CD 0 _ 7.4-7) CCCSD/Lafayette Liaison Meeting March 19, 2007 Summary minutes 1. Introductions - Lafayette: City manager Steve Faulk and Mayor Carol Federighi - CCCSD: Board Member Mike McGill and General Manager Jim Kelly 2. Issues of Common Interest Discussed City's $43 million library, and housing plans. There are two developments, one with 34 units in one with 80 units that are under consideration. Also, ABAG is calling for Lafayette to develop 700 units in the next 10 years. Development of property south of the BART station is the most likely location. A sign ordinance is under consideration. 3. Water Reclamation -No specific interest was expressed. 4. Marketing the District's Household Hazardous Waste Facility -Mr. Faulk and Ms Federighi said not accommodating a -waste at the HHHW facility was inconvenient. They supported our effort to work with the County sheriff to develop a pharmaceutical drop -off, and offered to lobby on our behalf. 5. CCCSD Planned Upgrade of our Website. - Online permitting: The City contracts with the county for permitting. There is now a permit office in Lafayette. Mr. Faulk asked if the district would consider having a computer at the permit office to enable online permitting for CCCSD at Lafayette. 6. Collection System Renovation & Capacity Improvement Program - We.have had 4 phases to date; about 40, 000 feet have been renovated -60 to 80, 000 feet need to be renovated -we will meet w /city this spring to discuss future projects -none are planned for this summer. Mr. Faulk said he heard no problems from his staff re working with CCCSD. We are the best utility to work with. 7. Ongoing Staff to Staff Coordination -Any challenge of complying with AB 32, the Green House Gas Reduction Bill? Mr. Faulk was not aware of AB32. 8. Other? -Lower Walnut Creek channel dredging issue. They will support our effort. Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Administrative 8.a. Type of Action: subject: RECEIVE AND PROVIDE COMMENTS ON DRAFT AMERICANS WITH DISABILITIES ACT (ADA) SELF - EVALUATION AND TRANSITION PLAN 17�%r�'i'1�7►►`l�7 rAWN Initiating Dept /Div.: Administration FOR BOARD ACTION: M Yes J/M& James M. Kelly, General Manager ISSUE: Federal and State law requires that public agencies employing more than 50 people have an approved Americans with Disabilities Act (ADA) Self- Evaluation and Transition Plan (SETP). RECOMMENDATION: Receive the draft ADA SETP and provide any comments to staff by Friday, April 13, 2007. A draft ADA Policy and Complaint Procedure are also attached for review and comment. FINANCIAL IMPACTS: HOB exterior improvements are expected to cost in the region of $180,000. Interior and remaining exterior improvements to the POB, HOB, HHWCF, Laboratory and Outdoor Park will cost approximately $200,000. There will be some additional costs incurred for training and other program - related changes. ALTERNATIVES /CONSIDERATIONS: The adoption of an ADA SETP is required by Federal and State law for public agencies with more than 50 employees. The Board could choose to make additional areas of the District facilities ADA accessible, such as the basement and second floor of the Headquarters Building, though this is not considered necessary at this time. BACKGROUND: Federal and State law requires that public agencies employing more than 50 people have an approved Americans with Disabilities Act (ADA) Self- Evaluation and Transition Plan (SETP). The SETP identifies and provides solutions for programmatic and physical barriers to the disabled. In July, 2006 the District hired the firm of Moore, lacofano and Goltsman (MIG) to assist with the preparation of an Americans with Disabilities Act Self- Evaluation and Transition Plan. Legal oversight was provided by Kurt Franklin of Hanson, Bridgett, Marcus, Vlahos and Rudy, LLP. Page 1 of 5 POSITION PAPER Board Meeting Date: April 5, 2007 subject. RECEIVE AND PROVIDE COMMENTS ON DRAFT AMERICANS WITH DISABILITIES ACT (ADA) SELF - EVALUATION AND TRANSITION PLAN MIG conducted a comprehensive evaluation of District policies and programs, including review of methods of communicating with the public and alternative communication methods and devices, and emergency evacuation procedures. They also identified physical barriers to accessibility at District facilities used by the public and made recommendations. Public Facilities Those areas that were identified to be accessed by the public included the First Floor (Reception, Permit Center, Board Room, Multi Purpose Room) and the Third Floor (public meeting /conference rooms, General Manager's Office). The Household Hazardous Waste exchange room and parking area were evaluated, as well as the lab parking area and restrooms. The main parking lot and access ramps were also evaluated. The evaluation included such items as ramp slopes, door pressure and knobs, signage, and wheelchair space. The proposed changes to the facilities that would bring them into compliance with the ADA have been prioritized in categories one through four. Title II of the Americans with Disabilities Act requires that an implementation schedule be established, but there are no specific time requirements for completion. The Priority 1 through 3 facility improvements identified in the SETP will be addressed in two separate projects. Priority 4 items are not essential for ADA compliance and are not being addressed at this time. The HOB exterior improvements, such as modification of handicap stalls in the visitor parking area, will be incorporated into the Plant Site Improvements Project which is currently under design and will be bid this summer. These improvements are estimated to cost approximately $165,000 to $180,000, depending on the extent of the re- grading and drainage repairs needed. (This compares to an estimate of $34,300 in the SETP.) The interior and remaining exterior improvements for the POB, HOB, HHWCF, Laboratory and Outdoor Park area can be grouped into a new project and funded from the individual projects in the General Improvement Program for ongoing improvements to POB, HOB and HHWCF areas. The timing of this project should be coordinated with other HOB improvements under consideration, including updating of the lobby area. These improvements are estimated at $185,000 to $200,000. (This compares to an estimate of $63,200 in the SETP.) Improvements to CSO will be deferred in anticipation of the new building project. Page 2 of 5 POSITION PAPER Board Meeting Date: April 5, 2007 subject. RECEIVE AND PROVIDE COMMENTS ON DRAFT AMERICANS WITH DISABILITIES ACT (ADA) SELF - EVALUATION AND TRANSITION PLAN Programs Evaluation of programs and services provided by the District resulted in recommendations for changes to the District's website, creation of a closed- captioned video of the plant tour, the addition of ADA notices on District brochures and materials, installation of an assistive listening device in the Board Room, and training for staff who deal with the public. ADA Complaint Procedure The District does not currently have an ADA complaint procedure, which is required for legal compliance. A draft is attached for review and comment. Outreach The Department of Justice requires that the District consult with individuals with disabilities to obtain input on the final draft SETP. An item was included in the Fall 2006 edition of Pipeline announcing the review of ADA policies. After Board review and input, the draft SETP will be placed on the District's web site. In addition, various local disability advocate groups will be invited to review the plan and provide comments prior to the public hearing to adopt the SETP on May 24, 2007. This item was reviewed by the Outreach Committee who recommended the Draft SETP for full Board consideration. A public hearing to consider adopting the final plan is proposed to be scheduled for the May 24, 2007 Board meeting. An ADA policy and Complaint Procedure will also need to be adopted at that time. RECOMMENDED BOARD ACTION: Review the draft ADA SETP and ADA Policy and Complaint Procedure and provide comments to staff. Page 3 of 5 5.0 ADA Policy and Complaint Procedure 5.1 Purpose In keeping with its efforts to provide access to all programs and activities offered to the public, the District has adopted a policy of providing reasonable program modifications and auxiliary aids and services to people with disabilities, unless to do so would cause an undue burden to the District. 5.2 Policy It is the policy of the District that no member of the public shall be favored or in any way discriminated against because of mental or physical disability or medical condition. The District representative responsible for ensuring District compliance with this nondiscrimination policy is the Secretary of the District, the ADA Coordinator. All official District publications, notices, and announcements will include a statement of the District's nondiscrimination policy. In addition, the nondiscrimination policy shall be posted in public places readily accessible to the public. Upon request, the ADA Coordinator or his/her designee shall make available to the public a form on which to file a complaint. 5.3 Procedures for Making Reasonable Program Modifications or Providing Auxiliary Aids or Services Requests for reasonable program modifications or auxiliary aids or services shall be made to the department responsible for the program or service. The department offering the program or service shall meet with the qualified individual with a disability to identify the limitations resulting from the disability and the potential accommodations to those limitations. The department offering the program or service shall consult with the affected program or service staff to determine the reasonable accommodation. The department offering the program or service may also consult with the District's ADA Coordinator or other resource providing services or information regarding individuals with disabilities as appropriate. The department offering the program or service shall document the accommodation(s) that was offered and the response of the person with the disability to the accommodation(s) offered. This documentation shall be filed with the ADA Coordinator's office. If the qualified individual with a disability is not satisfied with the results of this process, he or she shall follow the complaint procedure set out at section 5.4 below 133 Page 4 of 5 5.4 ADA Complaint Procedure A complaint is a claimed violation of the Americans with Disabilities Act. Qualified individuals with disabilities may file a complaint as set forth below. 1. It is the policy of the District that no member of the public shall be favored or in any way discriminated against because of mental or physical disability or medical condition. 2. The District representative responsible for ensuring District compliance with this nondiscrimination policy is the General Manager. 3. All official District publications, notices, and announcements will include a statement of the District's nondiscrimination policy. In addition, the nondiscrimination policy shall be posted in public places readily accessible to the public. 4. Upon request, the ADA Coordinator or his/her designee shall make available to the public a form on which to file a complaint. 5. A person who alleges that he or she has personally suffered unlawful discrimination, or who has learned of such unlawful discrimination in his or her official capacity should invoke the following resolution procedure: • A person who alleges that he or she has personally suffered unlawful discrimination, or who has learned of such unlawful discrimination in his or her official capacity, shall meet with the General Manager or his/her designee within 60 days of the alleged incident. • The General Manager or his/her designee shall fill out an "Interview Form for Documenting Discrimination" at that meeting, or as soon thereafter as practical. • The General Manager or his/her designee shall then investigate the alleged complaint, which may include meeting with the complainant, the party against whom the complaint is made, and witnesses. • After the General Manager or his/her designee determines the appropriate resolution, he or she shall meet with the complainant to discuss the complaint in an attempt to resolve the matter. The General Manager or his/her designee shall also advise the party(s) against whom the complaint is made of his/her rights under the investigation procedures, and any possible disciplinary actions should the complaint be found valid. 134 Page 5 of 5 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Administrative 8 . b . Type of Action: REVIEW AND COMMENT subject: HEADQUARTER OFFICE BUILDING (HOB) UPGRADES Submitted By: Randall M. Musgraves Initiating Dept. /Div.: Administration REVIEWED AND RECOMMENDED FOR BOARD ACTION: RandMu raves ,rector of Administration /;o IL— ames M. Kelly, General Manager ISSUE: Staff is seeking Board review, input and direction for proposed upgrades to the HOB Lobby and Boardroom. RECOMMENDATION: Receive presentation and provide direction to staff. FINANCIAL IMPACTS: A District project for $500,000 currently exists for HOB carpet, painting, lobby changes and Boardroom changes. ALTERNATIVES /CONSIDERATIONS: Reduce or increase the level or timing for proposed upgrades. The upgrades are proposed over a five -year time period. BACKGROUND: On October 5, 2006 a presentation was made to the Board regarding the need to implement Americans with Disabilities Act (ADA) facility modifications as well as upgrade the HOB offices, Lobby and Boardroom. Staff received conceptual approval. The ADA Plan has been completed and has been presented to the Board, immediately prior to this item. In addition, most of the work for the HVAC system has been completed in the HOB offices and will be finished before the ADA modifications and the HOB office upgrades would be initiated. Staff will coordinate the needed modifications with the upgrades in order to minimize the cost and disruption. Staff is proposing to implement the upgrades over a five -year period. The painted metal ceilings and siding will remain in an effort to keep costs to a reasonable level. The colors have been accounted for in the painting and carpet plans. Staff will slowly replace partitions and furniture based upon their condition. The planned upgrades for the HOB are listed on the next page. Staff's proposal to implement the upgrades over the next five years will create an updated and professional image to the public and for the employees. Staff has attached schematic drawings of the proposed changes. Please note that we were not able to provide exact colors of the carpet, furniture material, paint or wall coverings due to the limitations of the graphic software programs used and the color copier. N:\ADMINSUP\ADMIN \POSPAPER \HOB Upgrades 4 5 07.doc Page 1 of 9 POSITION PAPER Board Meeting Date: April 5, 2007 subject. HEADQUARTER OFFICE BUILDING (HOB) UPGRADES HOB Offices and Meeting Rooms Staff is proposing to paint the HOB offices and meeting rooms over the next five years, as previously stated. The proposed paint colors are beige - yellow, blue and burnt orange to accent walls as well as green wall covering to tie current and proposed colors, furniture, pictures and posters. The building is in need of carpet replacement (all four floors). Three colors of carpet are proposed. For offices, meeting rooms and hallways a multi - colored blue and multi- colored beige -brown will be used. It is a very durable square tile material making its implementation flexible with minimum interruption to staff. Future carpet repair will be less expensive by using the square tile carpet. A green tile carpet is proposed in the lobby where the carpet is now. This color of carpet would match well with the existing mural. A painting and carpet plan has been developed by the interior designer with staff's and management's input. A test of the paints and carpet will be done on the HOB second floor to ensure it portrays the corporate image desired. Pictures and posters, consistent with the current use, will continue to be used to highlight the District's mission and values. Lobby As previously discussed the lobby is proposed to have green carpet to be used where carpet is now and will match well with the existing mural. The existing furniture and secretarial work area will be replaced with a more modern look, as well as, improved ergonomics, comfort and durability. The current tile will remain. Art work will be added as well as two cases to display District awards and achievements. The Lobby will be coordinated with the Permit Counter area. The District's name and logo will be placed behind the receptionist clearly identifying the District for the public. Signage will be added for ADA compliance. Staff is researching the ability to use recycled material for the counter tops in the Lobby and Permit Counter areas. Attached are schematic drawings of the proposed changes to the lobby. Again, please note that we could not provide exact colors. Permit Counter The Permit counter area will be remodeled under a separate contract to meet ADA required modifications but will be consistent with the color scheme used in the rest of the building. Staff will work closely with the remodel efforts to take advantage of ergonomic, efficiency and customer interaction improvements. As previously stated, staff is researching the ability to use recycled material for the counter tops in the Permit Counter area. The current floor tile will remain. All modifications will also be coordinated with the ADA Plan recommendations. Michael Scahill, the District's N:WDMINSUP\ADMINTOSPAPEMHOB Upgrades 4 5 07.doc Page 2 of 9 POSITION PAPER Board Meeting Date: April 5, 2007 subject. HEADQUARTER OFFICE BUILDING (HOB) UPGRADES Communication Services Manager, will also be consulted in order to ensure that community outreach materials are incorporated and well presented and the Permit Section Supervisor and employees will be consulted for their input. Board Room Proposed modifications for ADA compliance coupled with the aging of the facility provides an opportunity for new carpet, paint, sound -proof wall covering, new District name sign and visual enhancements. The burgundy color scheme is proposed to continue to be used with improvement in color coordination with the new carpet and wall covering. The south side door will require modification to allow for wheelchair access and the section of seats at the Boardroom entrance will be removed to allow for the wheelchair disabled. Assistive Listening Devices will be provided for the hearing impaired. The current seat - stands will be painted to better color match the carpet and provide a cleaner look. Staff is researching ergonomic improvements for the Secretary to the Board's workstation. Attached is a schematic drawing of the proposed changes to the Boardroom. Again, please note that we could not provide the exact colors. Staff will present an overview, with samples, of the proposed changes to the Lobby and Boardroom at the April 5, 2007 meeting. Your input is sought in order to move forward with the purchase of materials or develop further changes as the Board directs. RECOMMENDED BOARD ACTION: Accept staff's review and provide comments and direction regarding proposed upgrades to the HOB Lobby and Boardroom. NAADMINSUPWDMIMPOSPAPEMHOB Upgrades 4 5 07.doc Page 3 of 9 5019 Imhoff Plcice. M,11tlnci, Califo mw 94553-4392 C�D 9410 Alto Drive, La Mesa, CA 91941 619.668.5678 619.668.5679 info @maxiondesign.com www.maxiondesign.com ILM 9410 Alto Drive, La Mesa, CA 91941 619.668.5678 619.668.5679 info @maxiondesign.com www.maxiondesign.com a AW i IY / i f, 0., Aw' now 49 6� .c — -4 � WK. AWWWL;�', WIM7 / i f, 0., Aw' now 49 6� .c — -4 in Oak -IF -A; Page 9 of 9 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Engineering 9.a. Type of Action: AUTHORIZE CONSULTANT SERVICES AGREEMENT REVISION subject: APPROVE INCREASE IN COST CEILING OF PROFESSIONAL ENGINEERING CONSULTING SERVICE AGREEMENT WITH AEPC GROUP FOR THE HEADQUARTERS OFFICE BUILDING HVAC IMPROVEMENTS AND ROOF REPLACEMENT PROJECT AND PLANT OPERATIONS BUILDING HVAC IMPROVEMENTS PROJECT, DISTRICT PROJECT 8205 AND 7228 Submitted By: Initiating Dept /Div.: Munawar Husain, Associate Engineer Engineering / Capital Projects REVIEWED AND RECOMMENDED FOR BOARD ACTION: n k M. Husain / &1(/ A. Rozul i T. Pilecki A. Farrel t mes M. Kelly, eneral Manager ISSUE: Board of Directors' approval is required for increases to the cost ceiling of agreements in amounts greater than staff authority. RECOMMENDATION: Authorize the General Manager to execute an amendment to the existing agreement (Agreement 031012) with AEPC Group in the amount of $50,000 for the Headquarters Office Building (HOB) HVAC Improvements and Roof Replacement Project and Plant Operations Building (POB) HVAC Improvements Project, DP 8205 and 7228. FINANCIAL IMPACTS: With the $50,000 increase in the consultant agreement cost ceiling, the total project cost is expected to be approximately $5,035,800. ALTERNATIVES /CONSIDERATIONS: Alternatives to the authorization for the additional professional services would be: Not to perform the additional work - this is not recommended, as this will adversely affect the performance of the new improvements. 2. Utilize another engineering consultant to perform the work - this is not recommended because AEPC Group has acquired extensive background and knowledge on the project. BACKGROUND: The Board authorized an agreement with AEPC Group in September 2005 to evaluate and provide an integrated design that addressed the undersized and inefficient HVAC systems, and replace the roof on the HOB and the Board Room. The approved final design proposed a central chiller plant for the HOB and expanded the existing POB chiller to accommodate the current and future cooling needs for both N: \PESUP \Cbradley \Position Papers \Husain \DP 8205 Cost Ceiling.doc Page 1 of 2 POSITION PAPER Board Meeting Date: April 5, 2007 subject APPROVE INCREASE IN COST CEILING OF PROFESSIONAL ENGINEERING CONSULTING SERVICE AGREEMENT WITH AEPC GROUP FOR THE HEADQUARTERS OFFICE BUILDING HVAC IMPROVEMENTS AND ROOF REPLACEMENT PROJECT AND PLANT OPERATIONS BUILDING HVAC IMPROVEMENTS PROJECT, DISTRICT PROJECT 8205 AND 7228 buildings. The design incorporated new digital HVAC controls tied into an Energy Management System that provides more efficient control and reduction in operating costs. Also included were electrical upgrades to the HOB, modifying cooling zones, weatherproofing the exterior walls of the HOB, and office space remodeling on the second floor of the HOB. When the project construction contract was awarded, the agreement with AEPC Group was amended to include engineering support during construction. During construction there were numerous unanticipated existing conditions encountered. At various locations throughout the HOB and in the POB pipe sizes, valve locations, and shaft dimensions were different than shown on the record drawings. The unexpected conditions resulted in additional engineering support from AEPC Group in the form of additional investigations and verifications, site visits, responses to contractor Requests For Information (RFIs), review of numerous additional submittals, and evaluation of contractor proposed change orders. The amendment in the amount of $50,000 to the existing agreement will provide the funds to complete the additional work and will increase the total agreement amount with AEPC Group to $374,391. RECOMMENDED BOARD ACTION: Authorize the General Manager to execute an amendment to the existing agreement (Agreement 031012) with AEPC Group to increase the cost ceiling by $50,000 for providing additional professional engineering services for the Headquarters Office Building HVAC Improvements and Roof Replacement Project and Plant Operations Building HVAC Improvements Project, DP 8205 and 7228. NAPESUP \Cbradley \Position Papers \Husain \DP 8205 Cost Ceiling.doc Page 2 of 2 9.a. and 9.b. Agenda • Unforeseen Conditions Encountered • Asbestos Abatement • Impacts Unforeseen Conditions Encountered • HOB ventilation shaft dimensions were smaller than expected • Conduits and cables penetrating ventilation shaft • Fire dampers upsized to meet current code Unforeseen Conditions Encountered • Roof insulation > 12- inches thick expected 5- inches • Asbestos in POB 2 Asbestos Abatement • Separated into 3 phases to allow concurrent activities • Each phase includes negative air pressure containment • Continuous air monitoring • Staff directed Contractor to begin initial abatement work to avoid delay costs and related claims Work Area Prep 3 Impacts • Plant Control Room will be manned as normal during abatement • POB office staff moved to HOB 2nd floor • POB men's and women's showers and locker room will be closed. • Expected duration 8 weeks • Project completion extended 30 days Recommendations Item 9.a. • Authorize the General Manager to execute an amendment to the existing agreement with AEPC Group in the amount of $50,000. Item 9.b. • Authorize the General Manager to execute a change order in an amount not to exceed $240,000. rd Central Contra Costa Sanitary District f BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Engineering 9.b. Type of Action: AUTHORIZE CONSTRUCTION CHANGE ORDER subject: AUTHORIZE THE GENERAL MANAGER TO EXECUTE A CHANGE ORDER WITH BELL PRODUCTS FOR THE HEADQUARTERS OFFICE BUILDING HVAC IMPROVEMENTS AND ROOF REPLACEMENT PROJECT AND PLANT OPERATIONS BUILDING HVAC IMPROVEMENTS PROJECT, DISTRICT PROJECT 8205 AND 7228 Submitted By: Initiating Dept. /Div.: Munawar Husain, Associate Engineer Engineering / Capital Projects REVIEWED AND RECOMMENDED FOR BOARD ACTION: bJ_ M. Husain 6�_, A. Rozul r! ecki QA-- A. Farrell u/ ames M. Kelly, General Manager ISSUE: Board of Directors' approval is required for execution of construction change orders in excess of $50,000. RECOMMENDATION: Authorize the General Manager to execute a change order in an amount not to exceed $240,000 for the Headquarters Office Building (HOB) HVAC Improvements and Roof Replacement Project and Plant Operations Building (POB) HVAC Improvements Project, DP 8205 and 7228. FINANCIAL IMPACTS: Including a previous change order for abatement work already completed, the total cost for asbestos abatement will be approximately $265,000. With this construction change order the total project cost is expected to be approximately $5,311,000. ALTERNATIVES /CONSIDERATIONS: Do not approve the change order. The project work will be stopped until the asbestos - containing material (ACM) is removed from the work area. The District would have to enter into a contract with another contractor to complete the removal of asbestos - containing material. This is not recommended, as the contractor will be delayed in completing the project, resulting in extra costs and potential claims to the District. BACKGROUND: Staff informed the Board at the meeting on March 15, 2006 that during construction in POB, ACM was unexpectedly found within the insulation jacket of hot water piping throughout the building and within the cement overspray on the steel trusses above the ceiling tiles. The District's asbestos consultant, Kellco, conducted extensive testing within POB and identified the areas where ACM exists and limits for ACM abatement work. Abatement work was completed in the POB mechanical room and basement areas to allow project construction to continue without delay. Staff has N: \PESUP \Cbradley \Position Papers \Husain \DP 8205 Construction Change Order.doc 1 of 2 POSITION PAPER Board Meeting Date: April 5, 2007 subject: AUTHORIZE THE GENERAL MANAGER TO EXECUTE A CHANGE ORDER WITH BELL PRODUCTS FOR THE HEADQUARTERS OFFICE BUILDING HVAC IMPROVEMENTS AND ROOF REPLACEMENT PROJECT AND PLANT OPERATIONS BUILDING HVAC IMPROVEMENTS PROJECT, DISTRICT PROJECT 8205 AND 7228 worked closely with Kellco and the contractor to develop a plan of action to complete the remaining abatement and site restoration expediently and economically, while also minimizing impacts to POB staff as much as possible. In an effort to avoid delay costs and potential claims staff has directed Bell Products, the project's general contractor, to begin the initial abatement work and be prepared to move ahead with the remaining work once Board authorization is given. Staff has negotiated a change order with Bell Products in an amount not to exceed $240,000. Plant Hazardous Services, a subcontractor to Bell Products, specializing in and certified to complete this type of work, will perform the ACM abatement work. The abatement work includes removal of the ACM, area cleanup, and installation of new water piping, ceiling tiles, and lighting within the abatement areas. RECOMMENDED BOARD ACTION: Authorize the General Manager to execute a change order to the existing construction contract with Bell Products in an amount not to exceed $240,000 for asbestos abatement work for the Headquarters Office Building HVAC Improvements and Roof Replacement Project and Plant Operations Building HVAC Improvements Project, DP 8205 and 7228. N:\PESUP\Cbradley \Position Papers \Husain \DP 8205 Construction Change Order.doc Page 2 of 2 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Human Resources 10.a. Type of Action: HUMAN RESOURCES subject: AUTHORIZATION TO HIRE SEASONAL EMPLOYEES Submitted By: Cathryn Freitas, Initiating Dept /Div.: Human Resources Manager Administration /Human Resources REVIEWED AND RECOMMENDED FOR BOARD ACTION: mes M. Kelly, l eneral Manager ISSUE: District staff has assessed its needs for seasonal employees in 2007. RECOMMENDATION: Authorize the hiring of 30 students for seasonal employment. FINANCIAL IMPACTS: The proposed seasonal staffing will cost approximately $297,267. ALTERNATIVES /CONSIDERATIONS: Authorize hiring fewer students for seasonal employment. BACKGROUND: Each year, the District hires students during the summer months for seasonal maintenance, vacation relief, cleanup, and special projects; and during the school year or semester breaks for additional assistance. Authorization was given for twenty -six student positions last year. Authorization is requested for thirty seasonal positions in Fiscal Year 2007 -2008. The last time salaries for seasonal employees were reviewed was in 2002. Based on a survey of local agencies, it is recommended that the hourly rates for seasonal employees be increased to remain competitive with other jurisdictions. Student Positions Current Salary Proposed Salary* Clerical $12.00 $13.00 Laborer $12.00 $15.00 Technical /Professional $15.50 $18.00 *For every year a student returns, add $1.00 per hour to a maximum of three additional summers. For example, a student clerical who has worked here for the past two summers would receive $15.00 per hour this summer. The extra dollar an hour recognizes the experience and serves as an incentive for returning students. H: \BUDGET\SEASONAL HELP 2007 PP.doc Page 1 of 3 POSITION PAPER Board Meeting Date: April 5, 2007 subject AUTHORIZATION TO HIRE SEASONAL EMPLOYEES The Staffing Plan was reviewed and recommended by the Personnel Committee at their March 8, 2007, meeting. Department Directors will be prepared to answer any questions regarding the following requests: Administration The Administration Department is requesting two summer student positions in 2007- 2008. This is the same number as last year. One position is located in Communication Services for technical support and the other will work for Safety and Risk Management locating and organizing District keys and providing clerical support. Collection System Operations The Collection System Operations Division is requesting two laborers at the Pumping Stations and four laborers to assist the Construction and Locating Sections. This is one additional position. Engineering The Engineering Department requests authorization to hire six engineering assistant summer student positions. This is three more than last year's request. Three positions will be assigned to the District's Environmental Services Division assisting in development services and collection system piping inventory and database work, one will work in Plant Operations on the mercury removal pilot study, and the other two positions will be assigned to the Capital Projects Division working on design projects for the collection system. Plant Operations The Plant Operations Department is requesting fifteen students this year, which is the same number of positions as last year's request. Seven of the summer student laborer positions will provide vacation coverage in Buildings and Grounds and do seasonal maintenance. The Plant is also requesting two relief positions in the Laboratory, one Electrical Shop assistant, two clerical, one laborer to assist the Mechanical Maintenance staff, one laborer to assist the Machine Shop staff, and one web information assistant to help build the Plant Operations Department's information site on the District's Intranet. The Secretary of the District The Secretary of the District is requesting one student to assist with records management, large projects, switchboard backup, and vacation relief. HABUDGEIISEASONAL HELP 2007 PP.doc Page 2 of 3 POSITION PAPER Board Meeting Date: April 5, 2007 subject. AUTHORIZATION TO HIRE SEASONAL EMPLOYEES RECOMMENDED BOARD ACTION: Authorize the hiring of thirty students for seasonal employment. HABUDGET\SEASONAL HELP 2007 PP.doc Page 3 of 3 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Human Resources 10.b. Type of Action: RECEIVE STAFFING PLAN subject. RECEIVE AND CONSIDER STAFFING PLAN FISCAL YEAR 2007 -2008 submitted By: Cathryn Freitas, Human Initiating Dept /Div.: Resources Manager Administration /Human Resources REVIEWED AND RECOMMENDED FOR BOARD ACTION: C. Freitas R. Kusp&es James . Kelly, Gener Manager ISSUE: Staff has analyzed its personnel needs for Fiscal Year 2007 -2008 and is submitting its requests for Board consideration at the April 5, 2007, Board Meeting. Board approval is scheduled for the May 10, 2007, Board Meeting. RECOMMENDATION: Receive and consider the Staffing Plan for Fiscal Year 2007- 2008. FINANCIAL IMPACTS: The proposed Staffing Plan would increase annual salary and benefit costs by $472,371, excluding any cost -of- living adjustments. ALTERNATIVES /CONSIDERATIONS: Modify or reject the proposed Staffing Plan. BACKGROUND: Each department has reviewed its staffing requirements for Fiscal Year 2007 -2008. The Staffing Plan includes departmental overviews, personnel actions taken during Fiscal Year 2006 -2007 to -date, requested changes and their justifications, new job classification descriptions, and organizational charts reflecting current staffing and proposed changes. To date, there have been 52 personnel actions during Fiscal Year 2006 -2007. The attached summary sheet highlights the effect of each department's staffing requests on the number of total authorized positions in the District and the costs in salaries and benefits. As shown in the summary, the total number of authorized regular positions in the District is proposed to be three more than last year. The proposed staffing requests will help to maintain and improve our regulatory compliance, improve our operational efficiency, and prepare for future workforce transitions. The proposed new positions and proposed position moves will establish an organizational structure that facilitates cross training and flexible staffing. Eight Co -op student positions are requested for both six -month terms for Fiscal Year 2007 -2008, which is two less positions than last year. H: \BUDGET\Receive Staffing Plan PP 2007 Rev.doc Page 1 of 4 POSITION PAPER Board Meeting Date: April 5, 2007 Subject. RECEIVE AND CONSIDER STAFFING PLAN FISCAL YEAR 2007 -2008 Eight Co -op student positions are requested for both six -month terms for Fiscal Year 2007 -2008, which is two less positions than last year. The salaries and wages in the 2007 -2008 O & M Departmental Budget will increase from the previous year due to cost -of- living salary adjustments and any merit and longevity increases scheduled in 2007 -2008. Staff is recommending the salaries for the seven Co -ops from four -year colleges be increased from $18.00 to $24.00 an hour and the one Co -op from Diablo Valley College be increased from $15.00 to $18.00 an hour. Co -op salaries were last adjusted in 2001. A salary survey of Co -op salaries was done and is attached for Board consideration. The Staffing Plan was reviewed, discussed, and approved as delineated below by the Personnel Committee at their March 8, 2007, meeting. District staff will meet and confer with the appropriate bargaining units on those items that are applicable prior to the Board adopting the Staffing Plan in May. Administration 1. Add one Network Technician (G -64, $4,873 - $5,895) position. Collection System Operations 2. Add one Maintenance Supervisor (S -75, $6,361 - $7,702) position. 3. Delete one Maintenance Crew Member 1 /II (1: G -53, $3,751 - $4,536; ll: G -59, $4,324 - $5,232) position. Engineering 4. Add one Assistant Engineer (S -73, $6,068 - $7,341) position. 5. Add one Senior Engineer (S -83, $7,702 - $9,313) position. 6. Delete two Supervising Engineering Assistant (S -74, $6,207 - $7,520) positions and the job classification description. Add two Development Services Supervisor (S -74, $6,207 - $7,520) positions, modify the job classification description, and reclassify Supervising Engineering Assistants Paul Kelly and Kurt Darner to Development Services Supervisors. HABUDGET\Receive Staffing Plan PP 2007 Rev.doc Page 2 of 4 POSITION PAPER Board Meeting Date: April 5, 2007 Subject RECEIVE AND CONSIDER STAFFING PLAN FISCAL YEAR 2007 -2008 Plant Operations 7. Delete two Plant Operator 1 /11 (1: G -59, $4,324 - $5,232; II: G -62, $4,647 - $5,622) positions. 8. Add two Plant Operator III (G -66, $5,105 - $6,180) positions. Secretary of the District Co-op None 9. Authorize the hiring of students to fill eight Co -op positions in 2007 -2008. RECOMMENDED BOARD ACTION: Receive and consider the Staffing Plan for Fiscal Year 2007 -2008 herein identified by items 1 — 9. The Staffing Plan will be submitted for final approval at the May 10, 2007, Board meeting. HABUDGE11Receive Staffing Plan PP 2007 Rev.doc Page 3 of 4 N Q CO) H O O V W W C� G � O N ZO t. ao J N CL 0 z M LL H U) 06 U) A LO M r.- N O M O O O N O M 00 O LO d d M M N 00 O c�7 = pj cr O V:, W N � M f- M N u') 00 N M O N Iq O N C4 m Ui � 69 69 6q 6F) 69 EA Cl) �3 CN � O V W O V co O t0 00 OD � N N W O Ak 0 N ao a coo O N v. PL co m c Q 0 0 O -0 O V co N p 00 N N Q O U O � ND 0 M co 0 00 � co O 1q, f� cV f- 1q, CD d N 't7 O O O — 0 to Cfl C) Cj 69 64 00 cc cc 61) 6% N 00 64 00 � CO 00 (V O 00 1 0 CO OD ti O c0 st cn Ln M — N 00 � l[) to Q-) LO N � Q LO 0 Lri 1 1 � 00 Ch C � 00 C7 C7 m C� cn p! — O N O N O U c O N D. c ca L Co • M : W U a " O 'a m O 'V •N N L O a 7 3 C M O C cn a F- U) W N ca C — aa) 0 a`) M E Q O d 0 C m a cu 3 m a o �U N E N (D o E cu U) m ea E r- ° °- a iu a°�i O D E n rn w O Q U w a Page 4 of 4 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Budget and Finance 11.b. Type of Action: APPROVE RESOLUTION Subject: APPROVE A BOARD RESOLUTION TO ADOPT THE REVISED 401(a) MONEY PURCHASE PLAN DOCUMENT Submitted By: Initiating Dept./Div.: Debbie Ratcliff, Controller Administrative /Finance & Accounting REVIEWED AND RECOMMENDED FOR BOARD ACTION: .1/ D. Ratcli A. Wsgraves ames M. Kelly. general Manager ISSUE: Board authorization is needed to adopt the revised 401(a) Money Purchase Plan Document. RECOMMENDATION: Approve a Board Resolution adopting the revised 401(a) Money Purchase Plan Document. FINANCIAL IMPACTS: None. ALTERNATIVES /CONSIDERATIONS: New regulations were issued by the Internal Revenue Service which require plan amendments. BACKGROUND: The District established a Section 401(a) Money Purchase Plan covering all full -time employees in January 1997. The Plan is administered by the District's Deferred Compensation Plan Advisory Committee. In accordance with new Internal Revenue Service (IRS) plan document submittal procedures, ICMA -RC submitted amended 401 Money Purchase Plan documents to the IRS in order to obtain updated advisory letters and maintain the tax - qualified status of the plans. Also, Plan amendments were made in order to continue to provide sponsors and participants with more flexible plans. Eight amendments have been included in the revised 401(a) Plan documents (see attachment A). The first four are changes in the benefits: Amendment one allows for in- service distributions for participants age 70 -Y2 or older and is recommended by staff. Amendment two, in- service distributions of rollover assets, is available only upon request. Staff does not recommend including this option in the District's plan. The reason behind staffs recommendation is that these plans are set up as savings accounts to be used at retirement. Additionally, there would be increased administration of these separate funds and additional paperwork. N:\ ADMINSUP\ADMIN \POSPAPER\Approve Resolution 401(A) 04- 19- 07.doc Page 1 of 6 POSITION PAPER Board Meeting Date: April 5, 2007 subject. APPROVE A BOARD RESOLUTION TO ADOPT THE REVISED 401(a) MONEY PURCHASE PLAN DOCUMENT • Amendment three does not apply to the District. • Amendment four, the Beneficiary Spousal Consent Election, allows a participant to elect any available form of distribution at retirement without spousal consent. Spousal consent is still required if a participant wishes to name someone other than their spouse as the beneficiary of the account. Staff recommends including this option. The last four amendments are simply adding clarifying language to existing benefits. The attached revised plan document was provided by ICMA -RC. The other two deferred compensation carriers that the District utilizes (i.e., ITT Hartford and Nationwide Retirement Solutions) have reviewed and approved the plan document as well. The changes to the 401(a) Money Purchase Plan Document were reviewed in detail with the Board Budget & Finance Committee. RECOMMENDED BOARD ACTION: The Deferred Compensation Plan Advisory Committee recommends that the Board approve a Resolution adopting the revised 401(a) Money Purchase Plan Document. N:\ ADMINSUP\ADMIN \POSPAPER\Approve Resolution 401(A) 04- 19- 07.doc Page 2 of 6 ATTACHMENT A OVERVIEW OF THE 401 MONEY PURCHASE AND PROFIT SHARING PLAN DOCUMENT CHANGES As your 401 qualified retirement plan provider, ICMA -R( will take care of most additional administrative tasks associated with the plan document changes. Your Client Services Team is available at 1- 800 - 326 -7272 to answer any questions you may have. Item Old New Plan Purpose Employer Provision Provision Document Administrative Reference Actions 1. In- Service Distributions Not available. Added the ability for the employer MPP: Section 9.08 Allows plan Complete the Adoption — Age 70 ' i to offer in- service distributions for sponsors Agreement Amendment participants age 70'/2 or older. to provide (Attachment 112 1 This provision is the default PSP: Section 9.08 participants if you do not wish option. If you do not wish with expanded to offer in- service to offer this option, you will distribution distributions to need to indicate "No" in options. participants who are Section 11 of Attachment B2* age 70'/h or older. (p.8). 2. In- Service Distributions Not available. Added the ability for the employer MPP: Section 9.07 Allows plan Complete the Adoption — Rollover Assets to offer in- service distributions sponsors Agreement Amendment for rolled -in amounts. This to provide (Attachment 11219 provision is not the default PSP: Section 9.09 participants you wish to offer in- option. If you wish to offer with expanded service distributions of this option, you will need to distribution rollover assets. indicate "Yes" in Section III options. of Attachment B2* (p.8). 3. Definition of Earnings Earnings and The definition of earnings MPP: Section 2.09 Provides Confirm that your compensation did shall now include any pre -tax higher 401(a) systems include not include pre -tax contributions to an integral part contribution employee pre -tax DOES NOT APPLY contributions to an trust (excluding direct employer PSP: Section 2.10 opportunities to health care benefit integral part trust of contributions) of the Employer participants. contributions the Employer providing providing retiree health care (excluding retiree health care benefits. This change to the direct employer benefits. earnings definition is the contributions) to an default option. If you do not integral part trust as wish to change your plan's part of an employee's definition of earnings, you gross income when Will need to indicate "No" in calculating plan Section V of Attachment B2* contributions. (p.8). MPP = Money Purchase Plan PSP = Profit Sharing Plan *Employers who are amending an individually designed plan document to include any of the optional provisions now available will need to complete the appropriate sections of Attachment C2 (p. 12). Page 3 of 6 ATTACHMENT A. Cont.) OVERVIEW OF THE 401 MONEY PURCHASE AND PROFIT SHARING PLAN DOCUMENT CHANGES As your 401 qualified retirement plan provider, ICMA -RC will take care of most additional administrative tasks associated with the plan document changes. Your Client Services Team is available at 1- 800 -326 -7272 to answer any questions you may have. Item Old Provision New Provision ICMA -RC Plan Document Reference Purpose Employer Administrative Actions 4. New MPP: Qualified Joint The 401(a) plan documents will now allow the MPP: The QJSA option Complete the Spousal and Survivor Annuity following Spousal Protection Options: Section 2.04 is rarely used by Adoption Agreement Protection (QJSA) was mandatory Section 17 participants, and Amendment for ICMA -RC Money Beneficiary Spousal Consent the additional (Attachment B2* on Options" Purchase Pension Plans. Election — This provision is the paperwork p.8) if you wish to Under the QJSA, the default option for 401 MPPs. required to waive continue using the participant receives an Under this option, participants may the QJSA option QJSA election. annuity in the form elect any of the available distribution when requesting of a guaranteed level options without spousal consent. a withdrawal monthly payment for However, married participants will often results as long as he /she lives. still be required to receive spousal in unnecessary If the spouse survives consent if they wish to name processing delays. the participant, he /she someone other than their spouse as will receive monthly the beneficiary of the account. payments equal to QJSA Election — If selected, the at least 50% of the normal form of payment of benefits participant's payments. under the Plan is a qualified joint and survivor annuity (QJSA) with PSP: The Beneficiary the participant's spouse (or life Spousal Consent Election annuity, if the participant is single). PSP: (explained in the "New The annuity option can be waived Section 2.04 Provision" column to with the consent of the spouse, and Section 17 the right) is already the another distribution option can then default option for be selected. Married participants are ICMA -RC's 401 Profit required to receive spousal consent Sharing Plans. if they wish to name someone other than their spouse as the beneficiary of the account. • Participant Directed Election — If selected, participants may elect any of the available distribution options without spousal consent. Participants can name any person(s) as the beneficiary(ies) of the Plan, without spousal consent. MPP = Money Purchase Plan PSP = Profit Sharing Plan * Employers who are amending an individually designed plan document to include any of the optional provisions now available will need to complete the appropriate sections ofAttaehment C2 (p. 12). Page 4 of 6 ATTACHMENT A (Cont.) OVERVIEW OF THE 401 MONEY PURCHASE AND PROFIT SHARING PLAN DOCUMENT CHANGES As your 401 qualified retirement plan provider, ICMA -RC will take care of most additional administrative tasks associated with the plan document changes. Your Client Services Team is available at 1- 800 - 326 -1212 to answer any questions you may have. MPP = Money Purchase Plan PSP = Profit Sharing Plan Page 5 of 6 Old Now ICMA -RC Plan Employer Item Provision Provision Document Purpose Administrative Reference Actions 5. Plan -to -Plan This change was Added language that provides for plan -to -plan MPP: Section 9.03(a) Clarification. None anticipated. Transfers introduced with transfers for the non - forfeitable interest of a EGTRRA but did not participant's account made for the purchase PSP: Section 9.03(a) specifically name of servke credit in defined benefit plans transfers for the maintained by the Employer. purchase of service credits in the "Transfer to Another Plan" section. 6. Portability of This change was Added Portability of Benefits language. This MPP: Section 4.09 Incorporates None anticipated. Benefits introduced with allows the plan sponsor to elect to allow roll -ins EGTRRA language EGTRRA. from all eligible plans, including 401(a), 403(b), into the model 451(b), etc. This was introduced to sponsors PSP: Section 4.10 plan documents. as part of the EGTRRA rollout in 2001. This provision is the default and will be offered unless the employer elects otherwise in the adoption agreement. 7. De Minimis This change was Updated the plan document to reflect the MPP: Section 9.04 aarification. None anticipated. lMthdrawals originally introduced following de minimis language. On or after Incorporates new with EGTRRA. January 1, 2002, if a Participant terminates PSP: Section 9.04 language into service, and the value of his/her non - forfeitable the model plan interest in his/her account is less than $1,000, documents. the participant's benefit shall be paid as soon as practicable to the participant in a single lump sum distribution. If the value of the participant's account is at least $1,000 but not more than the dollar limit under section 411(a) (11)(A) of the (ode (currently $5,000), the participant may elect to receive his/her non - forfeitable interest in his/her account. 8. Loans The plan document did Added language: "...unless waived by the MPP: Section Clarification. None anticipated. not specify the interest participant, any plan loan that is outstanding on 13.02(k) — Military rate at which loans the date that active duty military service begins Provision would accrue when will accrue interest at a rate of no more than 6% PSP: Section a participant enters during the period of military service..." 13.02(k) active military duty. MPP = Money Purchase Plan PSP = Profit Sharing Plan Page 5 of 6 RESOLUTION NO. A RESOLUTION ADOPTING THE REVISED 401(a) MONEY PURCHASE PLAN DOCUMENT WHEREAS, the Employer has employees rendering valuable services; and WHEREAS, the Employer has established a 401(a) Money Purchase Plan for such employees that serves the interest of the Employer by enabling it to provide reasonable retirement security for its employees and by assisting in the attraction and retention of competent personnel; and WHEREAS, the Employer has determined that the continuance of the 401(a) Money Purchase Plan will serve these objectives; and WHEREAS, amendments to the Plan have been enacted to obtain updated advisory letters and maintain the tax - qualified status of the plan, and to provide a more flexible plan: NOW, THEREFORE, BE IT RESOLVED that the Board of Directors of the Central Contra Costa Sanitary District hereby amends and restates the 401(a) Money Purchase Plan Document as of April 5, 2007. PASSED AND ADOPTED this 5th day of April 2007, by the District Board of the Central Contra Costa Sanitary District by the following vote: AYES: Members: NOES: Members: ABSENT: Members: James A. Nejedly President of the Board of Directors Central Contra Costa Sanitary District County of Contra Costa, State of California COUNTERSIGNED: Elaine R. Boehme Secretary of the Central Contra Costa Sanitary District County of Contra Costa, State of California Approved as to form: Kenton L. Alm Counsel for the District N:\ ADMINSUP\ADMIN \POSPAPER\Approve Resolution 401(A) 04- 19- 07.doc Page 6 of 6 s ct x E� I cM „'. Building Retirement Security ��k GOVERNMENTAL MONEY PURCHASE PLAN & TRUST I. PURPOSE The Employer hereby adopts this Plan and Trust to provide funds for its Employees' retirement, and to provide funds for their Beneficiaries in the event of death. The benefits provided in this Plan shall be paid from the Trust. The Plan and the Trust forming a part hereof are adopted and shall be maintained for the exclusive benefit of eligible Employees and their Beneficiaries. Except as provided in Sections 4.10 and 14.03, no part of the corpus or income of the Trust shall revert to the Employer or be used for or diverted to purposes other than the exclusive benefit of Participants and their Beneficiaries. II. DEFINITIONS 2.01 Account. A separate record which shall be established and maintained under the Trust for each Participant, and which shall include all Participant subaccounts created pursuant to Article IV, plus any Participant Loan Account created pursuant to Section 13.03. Each subaccount created pursuant to Article IV shall include any earnings of the Trust and adjustments for withdrawals, and realized and unrealized gains and losses allocable thereto. The term "Account" may also refer to any of such separate subaccounts. 2.02 Accounting Date. Each day that the New York Stock Exchange is open for trading, and such other dates as may be determined by the Plan Administrator, as provided in Section 6.06 for valuing the Trust's assets. 2.03 Adoption Agreement. The separate agreement executed by the Employer through which the Employer adopts the Plan and elects among the various alternatives provided thereunder, and which upon execution, becomes an integral part of the Plan. 2.04 Beneficiary. The person or persons (including a trust) designated by the Participant who shall receive any benefits payable hereunder in the event of the Participant's death. The designation of such Beneficiary shall be in writing to the Plan Administrator. A Participant may designate primary and contingent Beneficiaries. Where no designated Beneficiary survives the Participant or no Beneficiary is otherwise designated by the Participant, the Participant's Beneficiary shall be his /her surviving spouse or, if none, his /her estate. Notwithstanding the foregoing, the Beneficiary designation is subject to the requirements of Article XII unless the Employer elects otherwise in the Adoption Agreement. Notwithstanding the foregoing, where elected by the Employer in the Adoption Agreement (the "QJSA Election "), the Beneficiary designation is subject to the requirements of Article XVII. Notwithstanding the foregoing, to the extent permitted by the Employer, a Beneficiary receiving required minimum distributions in accordance with Article X and not in a benefit form elected under Article XI or XII, may designate a Beneficiary to receive the required minimum distributions that would have otherwise been payable to the initial Beneficiary but for his or her death. 2.05 Break in Service. A Period of Severance of at least twelve (12) consecutive months. In the case of an individual who is absent from work for maternity or paternity reasons, the twelve (12) consecutive month period beginning on the first anniversary of the first date of such absence shall not constitute a Break in Service. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence (1) by reason of the pregnancy of the individual, (2) by reason of the birth of a child of the individual, (3) by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or (4) for purposes of caring for such child for a period beginning immediately following such birth or placement. 2.06 Code. The Internal Revenue Code of 1986, as amended from time to time. 2.07 Covered Employment Classification. The group or groups of Employees eligible to make and /or have contributions to this Plan made on their behalf, as specified by the Employer in the Adoption Agreement. 2.08 Disability. A physical or mental impairment which is of such permanence and degree that, as determined by the Employer, a Participant is unable because of such impairment to perform any substantial gainful activity for which he /she is suited by virtue of his /her experience, training, or education and that has lasted, or can be expected to last, for a continuous period of not less than twelve (12) months, or can be expected to result in death. The permanence and degree of such impairment shall be supported by medical evidence. If the Employer maintains a long -term disability plan, the definition of Disability shall be the same as the definition of disability in the long -term disability plan. 2.09 Earnings. (a) General Rule. Earnings, which form the basis for computing Employer Contributions, are all of each Participant's W -2 earnings which are actually paid to the Participant during the Plan Year, plus any contributions made pursuant to a salary reduction agreement which are not includible in the gross income of the Employee under section 125, 402(e)(3), 402(h)(1)(B), 403(b), 414(h)(2), 457(b), or, effective January 1, 2001, 132(f)(4) of the Code. Earnings shall include any pre -tax contributions (excluding direct employer contributions) to an integral part trust of the Employer providing retiree health care benefits. Earnings shall also include any other earnings as defined and elected by the Employer in the Adoption Agreement. Unless the Employer elects otherwise in the Adoption Agreement, Earnings shall exclude overtime compensation and bonuses. (b) Limitation on Earnings. For any Plan Year beginning after December 31, 2001, the annual Earnings of each Participant taken into account in determining allocations shall not exceed $200,000, as adjusted for cost -of- living increases in accordance with section 401(a)(17)(B) of the Code. Annual Earnings means Earnings during the Plan Year or such other consecutive 12 -month period over which Earnings is otherwise determined under the Plan (the determination period). The cost -of- living adjustment in effect for a calendar year applies to annual Earnings for the determination period that begins with or within such calendar year. If a determination period consists of fewer than twelve (12) months, the annual Earnings limit is an amount equal to the otherwise applicable annual Earnings limit multiplied by the fraction, the numerator of which is the number of months in the short Plan Year and the denominator of which is twelve (12). If Earnings for any prior determination period are taken into account in determining a Participant's allocations for the current Plan Year, the Earnings for such prior year are subject to the applicable annual Earnings limit in effect for that prior year. (c) Limitations for Governmental Plans. In the case of an eligible participant in a governmental plan (within the meaning of section 414(d) of the Code), the dollar limitation shall not apply to the extent the Earnings which are allowed to be taken into account under the Plan would be reduced below the amount which was allowed to be taken into account under the Plan as in effect on July 1, 1993, as adjusted for increases in the cost -of- living in accordance with section 401(a)(17)(B) of the Code. For purposes of this Section, an eligible participant is an individual who first became a Participant in the Plan during a Plan Year beginning before the first Plan Year beginning after December 31, 1993. 2.10 Effective Date. The first day of the Plan Year during which the Employer adopts the Plan, unless the Employer elects in the Adoption Agreement an alternate date as the Effective Date of the Plan. 2.11 Employee. Any individual who has applied for and been hired in an employment position and who is employed by the Employer as a common law employee; provided, however, that Employee shall not include any individual who is not so recorded on the payroll records of the Employer, including any such person who is subsequently reclassified by a court of law or regulatory body as a common law employee of the Employer. For purposes of clarification only and not to imply that the preceding sentence would otherwise cover such person, the term Employee does not include any individual who performs services for the Employer as an independent contractor, or under any other non - employee. 2.12 Employer. The unit of state or local government or an agency or instrumentality of one (1) or more states or local governments that executes the Adoption Agreement. 2.13 Hour of Service. Each hour for which an Employee is paid or entitled to payment for the performance of du- ties for the Employer. 2.14 Nonforfeitable Interest. The nonforfeitable interest of the Participant or his /her Beneficiary (whichever is applicable) is that percentage of his /her Employer Contribution Account balance, which has vested pursuant to Article VII. A Participant shall, at all times, have a one hundred percent (100 %) Nonforfeitable Interest in his/ her Participant Contribution, Rollover, and Voluntary Contribution Accounts. 2.15 Normal Retirement Age. The age which the Employer specifies in the Adoption Agreement. If the Employer enforces a mandatory retirement age, the Normal Retirement Age is the lesser of that mandatory age or the age specified in the Adoption Agreement. 2.16 Participant. An Employee or former Employee for whom contributions have been made under the Plan and who has not yet received all of the payments of benefits to which he /she is entitled under the Plan. A Participant is treated as benefiting under the Plan for any Plan Year during which the participant received or is deemed to receive an allocation in accordance with Treas. Reg. section 1.410(b) -3(a). 2.17 Period of Service. For purposes of determining an Employee's initial or continued eligibility to participate in the Plan or the Nonforfeitable Interest in the Participant's Account balance derived from Employer Contributions, an Employee will receive credit for the aggregate of all time period(s) commencing with the Employee's first day of employment or reemployment and ending on the date a Break in Service begins. The first day of employment or reemployment is the first day the Employee performs an Hour of Service. An Employee will also receive credit for any Period of Severance of less than twelve (12) consecutive months. Fractional periods of a year will be expressed in terms of days. Notwithstanding anything to the contrary herein, if the Plan is an amendment and restatement of a plan that previously calculated service under the hours of service method, service shall be credited in a manner that is at least as generous as that provided under Treas. Regs. section 1.410(a) -7(g). 2.18 Period of Severance. A continuous period of time during which the Employee is not employed by the Employer. Such period begins on the date the Employee retires, quits or is discharged, or if earlier, the twelve (12) month anniversary of the date on which the Employee was otherwise first absent from service. 2.19 Plan. This Plan, as established by the Employer, including any elected provisions pursuant to the Adoption Agreement. 2.20 Plan Administrator. The person(s) or entity named to carry out certain nondiscretionary administrative functions under the Plan, as hereinafter described, which is the ICMA Retirement Corporation or any successor Plan Administrator. 2.21 Plan Year. The twelve (12) consecutive month period designated by the Employer in the Adoption Agreement. 2.22 Trust. The Trust created under Article VI of the Plan which shall consist of all of the assets of the Plan derived from Employer and Participant contributions under the Plan, plus any income and gains thereon, less any losses, expenses and distributions to Participants and Beneficiaries. III. ELIGIBILITY 3.01 Service. Except as provided in Sections 3.02 and 3.03 of the Plan, an Employee within the Covered Employment Classification who has completed a twelve (12) month Period of Service shall be eligible to participate in the Plan at the beginning of the payroll period next commencing thereafter. The Employer may elect in the Adoption Agreement to waive or reduce the twelve (12) month Period of Service. If the Employer maintains the plan of a predecessor employer, service with such employer shall be treated as Service for the Employer. 3.02 Age. The Employer may designate a minimum age requirement, not to exceed age twenty-one (21), for participation. Such age, if any, shall be declared in the Adoption Agreement. 3.03 Return to Covered Employment Classification. In the event a Participant is no longer a member of Covered Employment Classification and becomes ineligible to make contributions and /or have contributions made on his /her behalf, such Employee will become eligible for contributions immediately upon returning to a Covered Employment Classification. If such Participant incurs a Break in Service, eligibility will be determined under the Break in Service rules of the Plan. In the event an Employee who is not a member of a Covered Employment Classification becomes a member, such Employee will be eligible to participate immediately if such Employee has satisfied the minimum age and service requirements and would have otherwise previously become a Participant. 3.04 Service Before a Break in Service. All Periods of Service with the Employer are counted toward eligibility, including Periods of Service before a Break in Service. IV. CONTRIBUTIONS 4.01 Employer Contributions. For each Plan Year, the Employer will contribute to the Trust an amount as specified in the Adoption Agreement. The Employer's full contribution for any Plan Year shall be due and paid not later than thirty (30) working days after the close of the Plan Year. Each Participant will share in Employer Contributions for the period beginning on the date the Participant commences participation under the Plan and ending on the date on which such Employee severs employment with the Employer or is no longer a member of a Covered Employment Classification, and such contributions shall be accounted for separately in his /her Employer Contribution Account. Notwithstanding anything to the contrary herein, if so elected by the Employer in the Adoption Agreement, an Employee shall be required to make contributions as provided pursuant to Section 4.03 or 4.04 in order to be eligible for Employer Contributions to be made on his /her behalf to the Plan. 4.02 Forfeitures. All amounts forfeited by terminated Participants, pursuant to Section 7.06, shall be allocated to a suspense account and used to reduce dollar for dollar Employer Contributions otherwise required under the Plan for the current Plan Year and succeeding Plan Years, if necessary. Forfeitures may first be used to pay the reasonable administrative expenses of the Plan, with any remainder being applied to reduce Employer Contributions. 4.03 Mandatory Participant Contributions. If the Employer so elects in the Adoption Agreement, each eligible Employee shall make contributions at a rate prescribed by the Employer or at any of a range of specified rates, as set forth by the Employer in the Adoption Agreement, as a requirement for his /her participation in the Plan. Once an eligible Employee becomes a Participant, he /she shall not thereafter have the right to discontinue or vary the rate of such Mandatory Participant Contributions. Such contributions shall be accounted for separately in the Participant Contribution Account. Such Account shall be at all times nonforfeitable by the Participant. If the Employer so elects in the Adoption Agreement, the Mandatory Participant Contributions shall be "picked up" by the Employer in accordance with Code section 414(h)(2). Any contribution picked -up under this Section shall be treated as an employer contribution in determining the tax treatment under the Code, and shall not be included as gross income of the Participant until it is distributed. 4.04 Employer Matching Contributions of Voluntary Participant Contributions. If the Employer so elects in the Adoption Agreement, Employer Matching Contributions shall be made on behalf of an eligible Employee for a Plan Year only if the Employee agrees to make Voluntary Participant Contributions for that Plan Year. The rate of Employer Contributions shall, to the extent specified in the Adoption Agreement, be based upon the rate at which Voluntary Participant Contributions are made for that Plan Year. Employer Matching Contributions shall be accounted for separately in the Employer Contribution Account. 4.05 Voluntary Participant Contributions. If the Employer so elects in the Adoption Agreement, an eligible Employee may make after -tax voluntary (unmatched) contributions under the Plan for any Plan Year in any amount up to twenty five percent (25 %) of his /her Earnings for such Plan Year. Matched and unmatched contributions shall be accounted for separately in the Participant's Voluntary Contribution Account. Such Account shall be at all times nonforfeitable by the Participant. 4.06 Deductible Employee Contributions. The Plan will not accept deductible employee contributions which are made for a taxable year beginning after December 31, 1986. Contributions made prior to that date will be maintained in a Deductible Employee Contribution Account. The Account will share in the gains and losses under the Plan in the same manner as described in Section 6.06 of the Plan. Such Account shall be at all times nonforfeitable by the Participant. 4.07 Military Service Contributions. Notwithstanding any provision of the Plan to the contrary, effective December 12, 1994, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with section 414(u) of the Code. Effective December 12, 1994, if the Employer has elected in the Adoption Agreement to make loans available to Participants, loan repayments will be suspended under the Plan as permitted under section 414(u)(4) of the Code. 4.08 Changes in Participant Election. A Participant may elect to change his /her rate of Voluntary Participant Contributions at any time or during an election period as designated by the Employer. A Participant may discontinue such contributions at any time or during an election period as designated by the Employer. 4.09 Portability of Benefits. (a) Unless otherwise elected by the Employer in the Adoption Agreement, the Plan will accept Participant (which shall include, for purposes of this subsection, an Employee within the Covered Employment Classification whether or not he /she has satisfied the minimum age and service requirements of Article III,) rollover contributions and /or direct rollovers of distributions (including after -tax contributions) made after December 31, 2001 that are eligible for rollover in accordance with Section 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), or 457(e)(16) of the Code, from all of the following types of plans: (1) A qualified plan described in Section 401(a) or 403(a) of the Code; (2) An annuity contract described in Section 403(b) of the Code; (3) An eligible plan under Section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or a political subdivision of a state; and (4) An individual retirement account or annuity described in Section 408(a) or 408(b) of the Code (including SEPs, and SIMPLE IRAs after two years of participating in the SIMPLE IRA). (b) Notwithstanding the foregoing, the Employer may reject the rollover contribution if it determines, in its discretion, that the form and nature of the distribution from the other plan does not satisfy the applicable requirements under the Code to make the transfer or rollover a nontaxable transaction to the Participant; (c) For indirect rollover contributions, the amount distributed from such plan must be rolled over to this Plan no later than the sixtieth (60") day after the distribution was made from the plan, unless otherwise waived by the IRS pursuant to Section 402(c)(3) of the Code. (d) The amount transferred shall be deposited in the Trust and shall be credited to a Rollover Account. Such Account shall be one hundred percent (100 %) vested in the Participant. (e) The Plan will accept accumulated deductible employee contributions as defined in section 72(0)(5) of the Code that were distributed from a qualified retirement plan and transferred (rolled over) pursuant to section 402(c), 403(a)(4), 403(b)(8), or 408(d)(3) of the Code. Notwithstanding the above, this transferred (rolled over) amount shall be deposited to the Trust and shall be credited to a Deductible Employee Contributions Account. Such Account shall be one - hundred percent (100 %) vested in the Participant. (f) A Participant may, upon approval by the Employer and the Plan Administrator, transfer his /her interest in another plan maintained by the Employer that is qualified under section 401(a) of the Code to this Plan, provided the transfer is effected through a one -time irrevocable written election made by the Participant. The amount transferred shall be deposited in the Trust and shall be credited to sources that maintain the same attributes as the plan from which they are transferred. Such transfer shall not reduce the accrued years or service credited to the Participant for purposes of vesting or eligibility for any Plan benefits or features. 4.10 Return of Employer Contributions. Any contribution made by the Employer because of a mistake of fact must be returned to the Employer within one year of the date of contribution. V LIMITATION ON ALLOCATIONS 5.01 Participants Only in This Plan. (a) If the Participant does not participate in, and has never participated in another qualified plan or a welfare benefit fund, as defined in section 419(e) of the Code, maintained by the Employer, or an individual medical account, as defined by section 415(1)(2) of the Code, maintained by the Employer, which provides an Annual Addition, the amount of Annual Additions which may be credited to the Participant's Account for any Limitation Year will not exceed the lesser of the Maximum Permissible Amount or any other limitation contained in this Plan. If the Employer Contribution that would otherwise be contributed or allocated to the Participant's Account would cause the Annual Additions for the Limitation Year to exceed the Maximum Permissible Amount, the amount contributed or al- located will be reduced so that the Annual Additions for the Limitation Year will equal the Maximum Permissible Amount. (b) Prior to determining the Participant's actual Compensation for the Limitation Year, the Employer may determine the Maximum Permissible Amount for a Participant on the basis of a reasonable estimation of the Participant's Compensation for the Limitation Year, uniformly determined for all Participants similarly situated. Q As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for the Limitation Year will be determined on the basis of the Participant's actual Compensa- tion for the Limitation Year. (d) If, as a result of an inadvertent reasonable error in estimating the Maximum Permissible Amount for a Participant in accordance with Subsection (b) or pursuant to Subsection (c) or as a result of the allocation of forfeitures, there is an Excess Amount, the excess will be disposed of as follows: (1) Any Mandatory Participant Contributions that are not "picked up" by the Employer or Voluntary Participant Contributions, to the extent they would reduce the Excess Amount, will be returned to the Participant; (2) If after the application of paragraph (1) an Excess Amount still exists, and the Participant is covered by the Plan at the end of the Limitation Year, the Excess Amount in the Partici- pant's Account will be used to reduce Employer Contributions (including any allocation of forfeitures) for such Participant in the next Limitation Year, and each succeeding Limitation Year if necessary; (3) If after the application of paragraph (1) an Excess Amount still exists, and the Participant is not covered by the Plan at the end of the Limitation Year, the Excess Amount will be held unallocated in a suspense account. The suspense account will be applied to reduce future Employer Contributions (including allocation of any forfeitures) for all remaining Participants in the next Limitation Year, and each succeeding Limitation Year if necessary; (4) If a suspense account is in existence at any time during a particular Limitation Year, all amounts in the suspense account must be allocated and reallocated to Participants' accounts before any Employer or any Employee contributions may be made to the Plan for that Limita- tion Year. Excess Amounts in a suspense account may not be distributed to Participants or former Participants. 5.02 Participants in Another Defined Contribution Plan. (a) Unless the Employer provides other limitations in the Adoption Agreement, this Section applies if, in addition to this Plan, the Participant is covered under another qualified defined contribution plan maintained by the Employer, or a welfare benefit fund, as defined in section 419(e) of the Code, maintained by the Employer, or an individual medical account, as defined by section 415(1)(2) of the Code, maintained by the Employer, which provides an Annual Addition, during any Limitation Year. The Annual Additions which may be credited to a Participant's Account under this Plan for any such Limitation Year will not exceed the Maximum Permissible Amount reduced by the Annual Additions credited to a Participant's Account under the other plans and welfare benefit funds for the same Limitation Year. If the Annual Additions with respect to the Participant under other defined contribution plans and welfare benefit funds maintained by the Employer are less than the Maximum Permissible Amount and the Employer contribution that would otherwise be contributed or allocated to the Participant's Account under this Plan would cause the Annual Additions for the Limitation Year to exceed this limitation, the amount contributed or allocated will be reduced so that the Annual Additions under all such plans and funds for the Limitation Year will equal the Maximum Permissible Amount. If the Annual Additions with respect to the Participant under such other defined contribu- tion plans and welfare benefit funds in the aggregate are equal to or greater than the Maximum Per- missible Amount, no amount will be contributed or allocated to the Participant's Account under this Plan for the Limitation Year. (b) Prior to determining the Participant's actual Compensation for the Limitation Year, the Employer may determine the Maximum Permissible Amount for a Participant in the manner described in Section 5.01(b). VI (c) As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for the Limitation Year will be determined on the basis of the Participant's actual Compensa- tion for the Limitation Year. (d) If, pursuant to Subsection (c) or as a result of the allocation of forfeitures, a Participant's Annual Additions under this Plan and such other plans would result in an Excess Amount for a Limitation Year, the Excess Amount will be deemed to consist of the Annual Additions last allocated, except that Annual Additions attributable to a welfare benefit fund or individual medical account will be deemed to have been allocated first regardless of the actual allocation date. (e) If an Excess Amount was allocated to a Participant on an allocation date of this Plan which coincides with an allocation date of another plan, the Excess Amount attributed to this Plan will be the product of, (1) The total Excess Amount allocated as of such date, multiplied by the ratio of: (i) the Annual Additions allocated to the Participant for the Limitation Year as of such date under this Plan to (ii) the total Annual Additions allocated to the Participant for the Limitation Year as of such date under this and all the other prototype qualified defined contribution plans. (f) Any Excess Amount attributed to this Plan will be disposed in the manner described in Section 5.01(d). 5.03 Definitions. For the purposes of this Article, the following definitions shall apply: (a) Annual Additions: The sum of the following amounts credited to a Participant's account for the Limita- tion Year: (1) Employer Contributions; (2) Forfeitures; (3) Employee contributions; and (4) Allocations under a simplified employee pension. Amounts allocated, after March 31, 1984, to an individual medical account, as defined in section 415(1)(2) of the Code, which is part of a pension or annuity plan maintained by the Employer, are treated as Annual Additions to a defined contribution plan. For this purpose, any Excess Amount applied under Sections 5.01(d) or 5.02(f) in the Limitation Year to reduce Employer Contributions will be considered Annual Additions for such Limitation Year. (b) Compensation: A Participant's wages, salaries, and fees for professional services and other amounts received (without regard to whether an amount is paid in cash) for personal services actually rendered in the course of employment with the Employer maintaining the Plan to the extent that the amounts are includible in gross income (including, but not limited to, bonuses, fringe benefits, and reimbursements or other expense allowances under a nonaccountable plan (as described in Treas. Reg. section 1.62- 2(c))), and excluding the following: (1) Employer Contributions to a plan of deferred compensation which are not includible in the Employee's gross income for the taxable year in which contributed, or Employer Contributions under a simplified employee pension plan to the extent such contributions are deductible by the Employee, or any distributions from a plan of deferred compensation; and (2) Other amounts which received special tax benefits, or contributions made by the Employer (whether or not under a salary reduction agreement) towards the purchase of an annuity contract described in section 403(b) of the Code (whether or not the amounts are actually excludable from the gross income of the Employee). (3) Notwithstanding the above, Compensation shall include: (i) any elective deferrals (as defined in section 402(8)(3) of the Code), and (ii) any amount which is contributed or deferred by the Employer at the election of the Employee and which is not includible in the gross income of the Employee by reason of sections 125, 132(f)(4) or 457 of the Code. For purposes of applying the limitations of this Article, Compensation for a Limitation Year is the Compensation actually paid or made available during such year. (c) Defined Contribution Dollar Limitation: $40,000, as adjusted for increases in the cost -of- living in accordance with section 415(d) of the Code. (d) Employer: The Employer that adopts this Plan. (e) Excess Amount: The excess of the Participant's Annual Additions for the Limitation Year over the Maximum Permissible Amount. Any Excess Amount shall include allocable income. The income allocable to an Excess Amount is equal to the sum of allocable gain or loss for the Plan Year and the allocable gain or loss for the period between the end of the Plan Year and the date of distribution (the gap period). The Plan may use any reasonable method for computing the income allocable to an Excess Amount, provided that the method is used consistently for all Participants and for all corrective distributions under the Plan for the Plan Year, and is used by the Plan for allocating income to Participants' Accounts. (f) Limitation Year: A calendar year, or the twelve (12) consecutive month period elected by the Employer in the Adoption Agreement. All qualified plans maintained by the Employer must use the same Limitation Year. If the Limitation Year is amended to a different twelve (12) consecutive month period, the new Limitation Year must begin on a date within the Limitation Year in which the amend- ment is made. (g) Maximum Permissible Amount: The maximum Annual Addition that may be contributed or allocated to a Participant's Account under the Plan for any Limitation Year shall not exceed the lesser of: (1) The Defined Contribution Dollar Limitation, or (2) One hundred percent (100 %) (25% for Limitation Years before January 1, 2002) of the Participant's Compensation for the Limitation Year. The compensation limit referred to in (2) shall not apply to any contribution for medical benefits after separation from service (within the meaning of section 401(h) or section 419A(f) (2) of the Code) which is otherwise treated as an annual addition. If a short Limitation Year is created because of an amendment changing the Limitation Year to a differ- ent twelve (12) consecutive month period, the Maximum Permissible Amount will not exceed the Defined Contribution Dollar Limitation multiplied by the following fraction: Number of months in the short Limitation Year / 12 VI. TRUST AND INVESTMENT OF ACCOUNTS 6.01 Trust. A Trust is hereby created to hold all of the assets of the Plan for the exclusive benefit of Participants and Beneficiaries, except that expenses and taxes may be paid from the Trust as provided in Section 6.03. The trustee shall be the Employer or such other person which agrees to act in that capacity hereunder. 6.02 Investment Powers. The trustee or the Plan Administrator, acting as agent for the trustee, shall have the powers listed in this Section with respect to investment of Trust assets, except to the extent that the investment of Trust assets is controlled by Participants, pursuant to Section 13.03. (a) To invest and reinvest the Trust without distinction between principal and income in common or preferred stocks, shares of regulated investment companies and other mutual funds, bonds, notes, debentures, mortgages, certificates of deposit, contracts with insurance companies including but not limited to insurance, individual or group annuity, deposit administration, guaranteed interest contracts, and deposits at reasonable rates of interest at banking institutions including but not limited to savings accounts and certificates of deposit. Assets of the Trust may be invested in securities that involve a higher degree of risk than investments that have demonstrated their investment performance over an extended period of time. (b) To invest and reinvest all or any part of the assets of the Trust in any common, collective or com- mingled trust fund that is maintained by a bank or other institution and that is available to Employee plans qualified under section 401 of the Code, or any successor provisions thereto, and during the period of time that an investment through any such medium shall exist, to the extent of participation of the Plan, the declaration of trust of such common, collective, or commingled trust fund shall constitute a part of this Plan. (c) To invest and reinvest all or any part of the assets of the Trust in any group annuity, deposit administration or guaranteed interest contract issued by an insurance company or other financial institution on a commingled or collective basis with the assets of any other plan or trust qualified under section 401(a) of the Code or any other plan described in section 401(a) (24) of the Code, and such contract may be held or issued in the name of the Plan Administrator, or such custodian as the Plan Administrator may appoint, as agent and nominee for the Employer. During the period that an investment through any such contract shall exist, to the extent of participation of the Plan, the terms and conditions of such contract shall constitute a part of the Plan. (d) To hold cash awaiting investment and to keep such portion of the Trust in cash or cash balances, without liability for interest, in such amounts as may from time to time be deemed to be reasonable and necessary to meet obligations under the Plan or otherwise to be in the best interests of the Plan. (e) To hold, to authorize the holding of, and to register any investment to the Trust in the name of the Plan, the Employer, or any nominee or agent of any of the foregoing, including the Plan Administrator, or in bearer form, to deposit or arrange for the deposit of securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by any other person, and to organize corporations or trusts under the laws of any jurisdiction for the purpose of acquiring or holding title to any property for the Trust, all with or without the addition of words or other action to indicate that property is held in a fiduciary or representative capacity but the books and records of the Plan shall at all times show that all such investments are part of the Trust. 10 (f) Upon such terms as may be deemed advisable by the Employer or the Plan Administrator, as the case may be, for the protection of the interests of the Plan or for the preservation of the value of an invest- ment, to exercise and enforce by suit for legal or equitable remedies or by other action, or to waive any right or claim on behalf of the Plan or any default in any obligation owing to the Plan, to renew, extend the time for payment of, agree to a reduction in the rate of interest on, or agree to any other modification or change in the terms of any obligation owing to the Plan, to settle, compromise, adjust, or submit to arbitration any claim or right in favor of or against the Plan, to exercise and enforce any and all rights of foreclosure, bid for property in foreclosure, and take a deed in lieu of foreclosure with or without paying consideration therefor, to commence or defend suits or other legal proceedings whenever any interest of the Plan requires it, and to represent the Plan in all suits or legal proceedings in any court of law or equity or before any body or tribunal. (g) To employ suitable consultants, depositories, agents, and legal counsel on behalf of the Plan. (h) To open and maintain any bank account or accounts in the name of the Plan, the Employer, or any nominee or agent of the foregoing, including the Plan Administrator, in any bank or banks. (i) To do any and all other acts that may be deemed necessary to carry out any of the powers set forth herein. 6.03 Taxes and Expenses. All taxes of any and all kinds whatsoever that may be levied or assessed under existing or future laws upon, or in respect to the Trust, or the income thereof, and all commissions or acquisitions or dispositions of securities and similar expenses of investment and reinvestment of the Trust, shall be paid from the Trust. Such reasonable compensation of the Plan Administrator, as may be agreed upon from time to time by the Employer and the Plan Administrator, and reimbursement for reasonable expenses incurred by the Plan Administrator in performance of its duties hereunder (including but not limited to fees for legal, accounting, investment and custodial services) shall also be paid from the Trust. However, no person who is a fiduciary within the meaning of section 3(21) (A) of ERISA and regulations promulgated thereunder, and who receives full -time pay from the Employer may receive compensation from the Trust, except for expenses properly and actually incurred. 6.04 Payment of Benefits. The payment of benefits from the Trust in accordance with the terms of the Plan may be made by the Plan Administrator, or by any custodian or other person so authorized by the Employer to make such disbursement. Benefits under this Plan shall be paid only if the Plan Administrator, custodian or other person decides in his /her discretion that the applicant is entitled to them. The Plan Administrator, custodian or other person shall not be liable with respect to any distribution of Trust assets made at the direction of the Employer. 6.05 Investment Funds. In accordance with uniform and nondiscriminatory rules established by the Employer and the Plan Administrator, the Participant may direct his /her Accounts to be invested in one (1) or more investment funds available under the Plan; provided, however, that the Participant's investment directions shall not violate any investment restrictions established by the Employer and shall not include any investment in collectibles, as defined in section 408(m) of the Code. 6.06 Valuation of Accounts. As of each Accounting Date, the Plan assets held in each investment fund offered shall be valued at fair market value and the investment income and gains or losses for each fund shall be determined. Such investment income and gains or losses shall be allocated proportionately among all Account balances on a fund -by -fund basis. The allocation shall be in the proportion that each such Account balance as of the immediately preceding Accounting Date bears to the total of all such Account balances as of that Accounting Date. For purposes of this Article, all Account balances include the Account balances of all Participants and Beneficiaries. 6.07 Participant Loan Accounts. Participant Loan Accounts shall be invested in accordance with Section 13.03 of the Plan. Such Accounts shall not share in any investment income and gains or losses of the investment funds described in Section 6.05. 11 VII. VESTING 7.01 Vesting Schedule. The portion of a Participant's Account attributable to Mandatory Participant Contribu- tions and Voluntary Participant Contributions, and the earnings thereon, shall be at all times nonforfeitable by the Participant. A Participant shall have a Nonforfeitable Interest in the percentage of his /her Employer Contribution Account established under Section 4.01 and 4.04 determined pursuant to the schedule elected by the Employer in the Adoption Agreement. 7.02 Crediting Periods of Service. Except as provided in Section 7.03, all of an Employee's Periods of Service with the Employer are counted to determine the nonforfeitable percentage in the Employee's Account balance derived from Employer Contributions. If the Employer maintains the plan of a predecessor employer, service with such employer will be treated as service for the Employer. For purposes of determining years of service and Breaks in Service for the purposes of computing a Participant's nonforfeitable right to the Account balance derived from Employer Contributions, the twelve (12) consecutive month period will commence on the date the Employee first performs an hour of service and each subsequent twelve (12) consecutive month period will commence on the anniversary of such date. 7.03 Service After Break in Service. In the case of a Participant who has a Break in Service of at least five (5) years, all Periods of Service after such Breaks in Service will be disregarded for the purpose of determining the nonforfeitable percentage of the Employer- derived Account balance that accrued before such Break, but both pre -Break and post -Break service will count for the purposes of vesting the Employer- derived Account balance that accrues after such Break. Both Accounts will share in the earnings and losses of the fund. In the case of a Participant who does not have a Break in Service of at least five (5) years, both the pre -Break and post -Break service will count in vesting both the pre -Break and post -Break Employer- derived Account balance. In the case of a Participant who does not have any nonforfeitable right to the Account balance derived from Employer Contributions, years of service before a period of consecutive one (1) year Breaks in Service will not be taken into account in computing eligibility service if the number of consecutive one (1) year Breaks in Service in such period equals or exceeds the greater of five (5) or the aggregate number of years of service. Such aggregate number of years of service will not include any years of service disregarded under the preceding sentence by reason of prior Breaks in Service. If a Participant's years of service are disregarded pursuant to the preceding paragraph, such Participant will be treated as a new Employee for eligibility purposes. If a Participant's years of service may not be disregarded pursuant to the preceding paragraph, such Participant shall continue to participate in the Plan, or, if terminated, shall participate immediately upon reemployment. 7.04 Vesting Upon Normal Retirement Age. Notwithstanding Section 7.01 of the Plan, a Participant shall have a Nonforfeitable Interest in his /her entire Employer Contribution Account, to the extent that the balance of such Account has not previously been forfeited pursuant to Section 7.06 of the Plan, if he /she is employed on or after his /her Normal Retirement Age. 7.05 Vesting Upon Death or Disability. Notwithstanding Section 7.01 of the Plan, in the event of Disability or death, a Participant or his /her Beneficiary shall have a Nonforfeitable Interest in his /her entire Employer Contribution Account, to the extent that the balance of such Account has not previously been forfeited pursuant to Section 7.06 of the Plan. 7.06 Forfeitures. Except as provided in Sections 7.04 and 7.05 of the Plan or as otherwise provided in this Section 7.06, a Participant who separates from service prior to obtaining full vesting shall forfeit that percentage of his /her Employer Contribution Account balance which has not vested as of the date such Participant incurs a Break in Service of five (5) consecutive years or, if earlier, the date such Participant receives, or is deemed under 12 the provisions of Section 9.04 to have received, distribution of the entire Nonforfeitable Interest in his /her Employer Contribution Account. No forfeiture will occur solely as a result of a Participant's withdrawal of Employee Contributions. Forfeitures shall be allocated in the manner described in Section 4.02. 7.07 Reinstatement of Forfeitures. If the Participant returns to the employment of the Employer before incurring a Break in Service of five (5) consecutive years, any amounts forfeited pursuant to Section 7.06 shall be reinstated to the Participant's Employer Contribution Account on the date of repayment by the Participant of the amount distributed to such Participant from his /her Employer Contribution Account; provided, however, that if such Participant forfeited his /her Account balance by reason of a deemed distribution, pursuant to Section 9.04, such amounts shall be automatically restored upon the reemployment of such Participant. Such repayment must be made before the earlier of five (5) years after the first date on which the Participant is subsequently reemployed by the Employer, or the date the Participant incurs a Break in Service of five (5) consecutive years. VIII. BENEFITS CLAIM 8.01 Claim of Benefits. A Participant or Beneficiary shall notify the Plan Administrator in writing of a claim of benefits under the Plan. The Plan Administrator shall take such steps as may be necessary to facilitate the payment of such benefits to the Participant or Beneficiary. 8.02 Appeal Procedure. If any claim for benefits is initially denied by the Plan Administrator, the claimant shall file the appeal with the Employer, whose decision shall be final, to the extent provided by Section 15.07. IX. COMMENCEMENT OF BENEFITS 9.01 Normal and Elective Commencement of Benefits. A Participant who retires, becomes Disabled or incurs a severance from employment (separation from service for Plan Years beginning before 2002) for any other reason may elect by written notice to the Plan Administrator to have his or her vested Account balance benefits commence on any date, provided that such distribution complies with Section 9.02. Such election must be made in writing during the ninety (90) day period ending on the date as of which benefit payments are to commence. A Participant's election shall be revocable and may be amended by the Participant. The failure of a Participant to consent to a distribution while a benefit is immediately distributable, within the meaning of section 9.02 of the Plan, shall be deemed to be an election to defer commencement of payment of any benefit. 9.02 Restrictions on Immediate Distributions. Notwithstanding anything to the contrary in Section 9.01 of the Plan, if the value of a Participant's vested Account balance is at least $1,000, and the Account balance is immediately distributable, the Participant must consent to any distribution of such Account balance. The Participant's consent shall be obtained in writing during the ninety (90) day period ending on the date as of which benefit payments are to commence. No consent shall be required, however, to the extent that a distribution is required to satisfy section 401(a)(9) or 415 of the Code. The Plan Administrator shall notify the Participant of the right to defer any distribution until the Participant's Account balance is no longer immediately distributable. Such notification shall include a general description of the material features, and an explanation of the relative values of, the optional forms of benefit available under the Plan in a manner that would satisfy section 417(a)(3) of the Code, and shall be provided no less than thirty (30) and no more than ninety (90) days before the date as of which benefit payments are to commence. However, distribution may commence less than thirty (30) days after the notice described in the preceding sentence is given, provided (i) the distribution is one to which sections 401(a)01) and 417 of the Code do not apply or, if the QJSA Election is made by the Employer in the Adoption Agreement, the waiver requirements of Section 17.04(a) are met; (ii) the Plan Administrator clearly informs the Participant that the Participant 13 has a right to a period of at least thirty (30) days after receiving the notice to consider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option); and (iii) the Participant, after receiving the notice, affirmatively elects a distribution. In addition, upon termination of this Plan if the Plan does not offer an annuity option (purchased from a commercial provider) and if the Employer does not maintain another 401(a) defined contribution plan, the Participant's Account balance will, without the Participant's consent, be distributed to the Participant in a lump sum. However, if the Employer maintains another 401(a) defined contribution plan, the Participant's Account balance will be transferred, without the Participant's consent, to the other plan if the Participant does not consent to an immediate distribution. An Account balance is immediately distributable if any part of the Account balance could be distributed to the Participant (or surviving spouse) before the Participant attains or would have attained (if not deceased) the later of Normal Retirement Age or age sixty-two (62). For purposes of determining the applicability of the foregoing consent requirements to distributions made before the first day of the first plan year beginning after December 31, 1988, the Participant's vested Account balance shall not include amounts attributable to accumulated deductible employee contributions within the meaning of section 72(o)(5)(B) of the Code. 9.03 Transfer to Another Plan. (a) If a Participant becomes eligible to participate in another plan maintained by the Employer that is qualified under section 401(a) of the Code, the Plan Administrator shall, at the written election of such Participant, transfer all or part of such Participant's Account to such plan, provided the plan administrator for such plan certifies to the Plan Administrator that its plan provides for the acceptance of such a transfer. Such transfers shall include those transfers of the nonforfeitable interest of a Participant's Account made for the purchase of service credit in defined benefit plans maintained by the Employer. For purposes of this Plan, any such transfer shall not be considered a distribution to the Participant subject to spousal consent as described in Section 9.10. (b) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributee's election under this Section, a Distributee may elect, at the time and in the manner prescribed by the Plan Administrator, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover. (c) Definitions. For the purposes of Subsection (b), the following definitions shall apply: (1) Eligible Rollover Distribution. Any distribution of all or any portion of the balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not include: (i) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Distributee or the joint lives (or joint life expectancies) of the Distributee and the Distributee's designated beneficiary, or for a specified period of ten years or more; (ii) any distribution to the extent such distribution is required under section 401(a)(9) of the Code; and (iii) the portion of any other distribution(s) that is not includible in gross income. A portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after -tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in section 408(a) or (b) of the Code, or to a 14 qualified defined contribution plan described in section 401(a) or 403(a) of the Code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible. (2) Eligible Retirement Plan. (i) an individual retirement account described in section 408(a) of the Code or an individual retirement annuity described in section 408(b) of the Code (collectively, an "IRA "); (ii) an annuity plan described in section 403(a) of the Code; (iii) an annuity contract described in section 403(b) of the Code, (iv) an eligible plan under section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this Plan; or (v) a qualified plan described in section 401(a) of the Code, that accepts the Distributee's Eligible Rollover Distribution. The definition of Eligible Retirement Plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee, under a qualified domestic relations order, as defined in section 414(p) of the Code. (3) Distributee. Participant; in addition, the Participant's surviving spouse and the spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in section 414(p) of the Code, are Distributees with regard to the interest of the spouse or former spouse. (4) Direct Rollover. A payment by the Plan to the Eligible Retirement Plan specified by the Distributee. 9.04 De Minimis Accounts. Notwithstanding the foregoing provisions of this Article, prior to January 1, 2002, if a Participant terminates service, and the value of his /her Nonforfeitable Interest in his /her Account is not greater than the dollar limit under section 411(a)(11)(A) of the Code, the Participant's benefit shall be paid (to the extent it constitutes an Eligible Rollover Distribution) in the form of a direct rollover to the Plan Administrator's designated IRA, unless he /she affirmatively elects to receive a cash payment or a Direct Rollover in accordance with procedures established by the Plan Administrator. On or after January 1, 2002, if a Participant terminates service, and the value of his /her Nonforfeitable Interest in his /her Account is less than $1,000, the Participant's benefit shall be paid as soon as practicable to the Participant in a single lump sum distribution. If the value of the Participant's Account is at least $1,000 but not more than the dollar limit under section 411(a)(11)(A) of the Code, the Participant may elect to receive his /her Nonforfeitable Interest in his /her Account. Such distribution shall be made as soon as practicable following the request, in a lump sum. For purposes of this Section, if a Participant's Nonforfeitable Interest in his /her Account is zero, the Participant shall be deemed to have received a distribution of such Nonforfeitable Interest in his /her Account. 9.05 Withdrawal of Voluntary Contributions. A Participant may upon written request withdraw a part of or the full amount of his /her Voluntary Contribution Account. Such withdrawals may be made at any time, provided that no more than two (2) such withdrawals may be made during any calendar year. No forfeiture will occur solely as the result of any such withdrawal. 15 9.06 Withdrawal of Deductible Employee Contributions. A Participant may upon written request withdraw a part of or the full amount of his /her Deductible Employee Contribution Account. Such withdrawals may be made at any time, provided that no more than two (2) such withdrawals may be made during any calendar year. No forfeiture will occur solely as the result of any such withdrawal. 9.07 In- Service Distribution from Rollover Account. Where elected by the Employer in the Adoption Agreement, a Participant that has a separate account attributable to rollover contributions to the Plan, may at any time elect to receive a distribution of all or any portion of the amount held in the Rollover Account. 9.08 In- Service Distributions. Unless otherwise elected by the Employer in the Adoption Agreement, a Participant who has reached age 70 -1/2 regardless of his Nonforfeitable Interest in his /her entire Employer Contribution Account, shall, upon written request, receive a distribution of a part of or the full amount of the balance in any or all of his vested Accounts. Such distributions may be requested at any time, provided that no more than two (2) such distributions may be made during any calendar year. 9.09 Latest Commencement of Benefits. Notwithstanding anything to the contrary in this Article, benefits shall begin no later than the Participant's Required Beginning Date, as defined under Section 10.05, or as otherwise provided in Section 10.04. 9.10 Spousal Consent. Notwithstanding the foregoing, if the Employer elected the QSA Election in the Adoption Agreement, a married Participant must first obtain his or her spouse's notarized consent to request a distribution (other than a Qualified Joint and Survivor Annuity), withdrawal, or rollover under this Article IX. X. DISTRIBUTION REQUIREMENTS 10.01 General Rules. (a) Subject to the provisions of Article XII or XVII if so elected by the Employer in the Adoption Agreement, the requirements of this Article shall apply to any distribution of a Participant's interest and will take precedence over any inconsistent provisions of this Plan. Unless otherwise specified, the provisions of this Article X apply to calendar years beginning after December 31, 2002. With respect to distributions under the Plan made in or for Plan Years beginning on or after January 1, 2002 and prior to January 1, 2003, the Plan will apply the minimum distribution requirements of section 401(a)(9) of the Code in accordance with the regulations under section 401(a)(9) that were proposed on January 17, 2001, notwithstanding any provision of the Plan to the contrary. (b) All distributions required under this Article shall be determined and made in accordance with the regulations under section 401(a)(9) of the Code, and the minimum distribution incidental benefit requirement of section 401(a) (9) (G) of the Code. (c) Limits on Distribution Periods. As of the first Distribution Calendar Year, distributions to a Participant, if not made in a single -sum, may only be made over one of the following periods: (1) The life of the Participant; or (2) The joint lives of the Participant and a designated Beneficiary; or (3) A period certain not extending beyond the life expectancy of the Participant; or (4) A period certain not extending beyond the joint and last survivor expectancy of the Participant and a designated Beneficiary. 16 (d) TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this Article XVII, distributions may be made under a designation made before January 1, 1984, in accordance with Section 242(b) (2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the Plan that relate to Section 242(b)(2) ofTEFRA. 10.02 Time and Manner of Distribution (a) Required Beginning Date. The Participant's entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant's required beginning date. (b) Death of Participant Before Distributions Begin. If the Participant dies before distributions begin, the Participant's entire interest will be distributed, or begin to be distributed, no later than as follows: (1) If the Participant's surviving spouse is the Participant's sole designated Beneficiary, then, distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died, or by December 31 of the calendar year in which the Participant would have attained age 70 1/2, if later. (2) If the Participant's surviving spouse is not the Participant's sole designated Beneficiary, then distributions to the designated Beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died. (3) If there is no designated Beneficiary as of September 30 of the year following the year of the Participant's death, the Participant's entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Participant's death. (4) If the Participant's surviving spouse is the Participant's sole designated Beneficiary and the surviving spouse dies after the Participant but before distributions to the surviving spouse begin, this Section 10.02(b), other than Section 10.02(b)(1), will apply as if the surviving spouse were the Participant. For purposes of this Section 10.02(b) and Section 10.04, unless Section 10.02(b)(4) applies, distributions are considered to begin on the Participant's required beginning date. If Section 10.02(b)(4) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under Section 10.02(b)(1). If distributions under an annuity purchased from an insurance company irrevocably commence to the Participant before the Participant's required beginning date (or to the Participant's surviving spouse before the date distributions are required to begin to the surviving spouse under Section 10.02(b)(1)), the date distributions are considered to begin is the date distributions actually commence. (c) Forms of Distribution. Unless the Participant's interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance with Sections 10.03 and 10.04. If the Participant's interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of Code Section 401(a) (9) and the Treasury Regulations. 10.03 Required Minimum Distributions During Participant's Lifetime (a) Amount of Required Minimum Distribution For Each Distribution Calendar Year. During the Participant's lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of- (1) The quotient obtained by dividing the Participant's Account Balance by the distribution 17 period set forth in the Uniform Lifetime Table found in Section 1.401(a)(9) -9, Q&A -2, of the Final Income Tax Regulations using the Participant's age as of the Participant's birthday in the distribution calendar year; or (2) If the Participant's sole designated Beneficiary for the distribution calendar year is the Participant's spouse, the quotient obtained by dividing the Participant's Account Balance by the number in the Joint and Last Survivor Table set forth in Section 1.401(a)(9) -9, Q&A -3, of the regulations using the Participant's and spouse's attained ages as of the Participant's and spouse's birthdays in the distribution calendar year. (b) Lifetime Required Minimum Distributions Continue Through Year of Participants Death. Required minimum distributions will be determined under this Section 10.03 beginning with the first distribution calendar year and continuing up to, and including, the distribution calendar year that includes the Participant's date of death. 10.04 Required Minimum Distributions After Participant's Death (a) Death On or After Date Distributions Begin. (1) Participant Survived by Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant's death is the quotient obtained by dividing the Participant's Account Balance by the longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participant's designated Beneficiary, determined as follows: (i) The Participant's remaining life expectancy is calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. (ii) If the Participant's surviving spouse is the Participant's sole designated Beneficiary, the remaining life expectancy of the surviving spouse is calculated for each distribution calendar year after the year of the Participant's death using the surviving spouse's age as of the spouse's birthday in that year. For distribution calendar years after the year of the surviving spouse's death, the remaining life expectancy of the surviving spouse is calculated using the age of the surviving spouse as of the spouse's birthday in the calendar year of the spouse's death, reduced by one for each subsequent calendar year. (iii) If the Participant's surviving spouse is not the Participant's sole designated Beneficiary, the designated Beneficiary's remaining life expectancy is calculated using the age of the Beneficiary in the year following the year of the Participant's death, reduced by one for each subsequent year. (2) No Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is no designated Beneficiary as of September 30 of the year after the year of the Participant's death, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant's death is the quotient obtained by dividing the Participant's Account Balance by the Participant's remaining life expectancy calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. (b) Death Before Date Required Distributions Begin. (1) Participant Survived by Designated Beneficiary. If the Participant dies before the date required distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant's death is 18 the quotient obtained by dividing the Participant's Account Balance by the remaining life expectancy of the Participant's designated Beneficiary, determined as provided in Section 10.04(a). (2) No Designated Beneficiary. If the Participant dies before the date distributions begin and there is no designated Beneficiary as of September 30 of the year following the year of the Participant's death, distribution of the Participant's entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant's death. (3) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the Participant dies before the date distributions begin, the Participant's surviving spouse is the Participant's sole designated Beneficiary, and the surviving spouse dies before distributions are required to begin to the surviving spouse under Section 10.02(b)(1), this Section 10.04(b) will apply as if the surviving spouse were the Participant. 10.05 Definitions (a) Designated Beneficiary. The individual who is designated by the Participant (or the Participant's surviving spouse) as the Beneficiary of the Participant's interest under the Plan and who is the designated Beneficiary under Code Section 401(a) (9) and Section 1.401(a) (9) -4 of the regulations. (b) Distribution Calendar Year. A calendar year for which a minimum distribution is required. For distributions beginning before the Participant's death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Participant's required beginning date. For distributions beginning after the Participant's death, the first distribution calendar year is the calendar year in which distributions are required to begin under Section 10.02(b). The required minimum distribution for the Participant's first distribution calendar year will be made on or before the Participant's required beginning date. The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the Participant's required beginning date occurs, will be made on or before December 31 of that distribution calendar year. (c) Life Expectancy. Life expectancy as computed by use of the Single Life Table in Section 1.401(a) (9)- 9, Q&A -1, of the regulations. (d) Participant's Account Balance. The Account Balance as of the last Accounting Date in the calendar year immediately preceding the distribution calendar year (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the Account Balance as of dates in the valuation calendar year after the Accounting Date and decreased by distributions made in the valuation calendar year after the Accounting Date. The Account Balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year. (e) Required Beginning Date. The Required Beginning Date of a Participant is April 1 of the calendar year following the later of the calendar year in which the Participant attains age seventy and one -half (70 -1/2), or the calendar year in which the Participant retires. XI. MODES OF DISTRIBUTION OF BENEFITS 11.01 Normal Mode of Distribution. Unless an elective mode of distribution is elected as provided in Section 11.02, benefits shall be paid to the Participant in the form of a lump sum payment. Notwithstanding the foregoing, where the Employer made the "QJSA Election" in the Adoption Agreement, unless an elective mode of distribution is elected in accordance with Article XVII, benefits shall be paid to the Participant in the form provided for in Article XVII. 19 11.02 Elective Mode of Distribution. Subject to the requirements of Articles X, XII and XVII, a Participant may revocably elect to have his /her Account distributed in any one (1) of the following modes in lieu of the mode described in Section 11.01: (a) Equal Payments. Equal monthly, quarterly, semi - annual, or annual payments in an amount chosen by the Participant continuing until the Account is exhausted. (b) Period Certain. Approximately equal monthly, quarterly, semi - annual, or annual payments, calculated to continue for a period certain chosen by the Participant. (c) Other. Any other sequence of payments requested by the Participant. (d) Lump Sum. Where the Employer did make the QJSA Election in the Adoption Agreement, a Participant may also elect a lump sum payment. 11.03 Election of Mode. A Participant's election of a payment option must be made in writing between thirty (30) and ninety (90) days before the payment of benefits is to commence. 11.04 Death Benefits. Subject to Article X (and Article XII or XVII if so elected by the Employer in the Adoption Agreement), (a) In the case of a Participant who dies before he /she has begun receiving benefit payments, the Participant's entire Nonforfeitable Interest shall then be payable to his /her Beneficiary within ninety (90) days of the Participant's death. A Beneficiary who is entitled to receive benefits under this Sec- tion may elect to have benefits commence at a later date, subject to the provisions of Article X. The Beneficiary may elect to receive the death benefit in any of the forms available to the Participant under Sections 11.01 and 11.02. If the Beneficiary is the Participant's surviving spouse, and such surviving spouse dies before payment commences, then this Section shall apply to the beneficiary of the surviving spouse as though such surviving spouse were the Participant. (b) Should the Participant die after he /she has begun receiving benefit payments, the Beneficiary shall receive the remaining benefits, if any, that are payable, under the payment schedule elected by the Participant. Notwithstanding the foregoing, the Beneficiary may elect to accelerate payments of the remaining balances, including but not limited to, a lump sum distribution. XII. SPOUSAL DEATH BENEFIT REQUIREMENTS 12.01 Application. Unless otherwise elected by the Employer in the Adoption Agreement, on or after January 1, 2006, the provisions of this Article shall take precedence over any conflicting provision in this Plan. The provisions of this Article, known as the "Beneficiary Spousal Consent Election," shall apply to any Participant who is credited with any Period of Service with the Employer on or after August 23, 1984, and such other Participants as provided in Section 12.04. 12.02 Spousal Death Benefit. (a) On the death of a Participant, the Participant's Vested Account Balance will be paid to the Participant's Surviving Spouse. If there is no Surviving Spouse, or if the Participant has waived the spousal death benefit, as provided in Section 12.03, such Vested Account Balance will be paid to the Participant's designated Beneficiary. (b) The Surviving Spouse may elect to have distribution of the Vested Account Balance commence within the ninety (90) day period following the date of the Participant's death, or as otherwise provided under Section 11.04. The Account balance shall be adjusted for gains or losses occurring after the Participant's death in accordance with the provisions of the Plan governing the adjustment of Account balances for other types of distributions. 20 12.03 Waiver of Spousal Death Benefit. The Participant may waive the spousal death benefit described in Section 12.02 at any time; provided that no such waiver shall be effective unless: (a) the Participant's Spouse consents in writing to the election; (b) the election designates a specific Beneficiary, including any class of Beneficiaries or any contingent Beneficiaries, which may not be changed without spousal consent (or the Spouse expressly permits designations by the Participant without any further spousal consent); (c) the Spouse's consent acknowledges the effect of the election; and (d) the Spouse's consent is witnessed by a Plan representative or notary public. If it is established to the satisfaction of a Plan representative that there is no Spouse or that the Spouse cannot be located, a waiver will be deemed to meet the requirements of this Section. Any consent by a Spouse obtained under this provision (or establishment that the consent of a Spouse may not be obtained) shall be effective only with respect to such Spouse. A consent that permits designations by the Participant without any requirement of further consent by such Spouse must acknowledge that the Spouse has the right to limit consent to a specific Beneficiary, and a specific form of benefit where applicable, and that the Spouse voluntarily elects to relinquish either or both of such rights. A revocation of a prior waiver may be made by a Participant without the consent of the Spouse at any time before the commencement of benefits. The number of revocations shall not be limited. 12.04 Definitions. For the purposes of this Section, the following definitions shall apply: (a) Spouse (Surviving Spouse): The Spouse or Surviving Spouse of the Participant, provided that a former Spouse will be treated as the Spouse or Surviving Spouse and a current Spouse will not be treated as the Spouse or Surviving Spouse to the extent provided under a qualified domestic relations order as described in section 414(p) of the Code; and (b) Vested Account Balance: The aggregate value of the Participant's vested Account balances derived from Employer and Employee contributions (including rollovers), whether vested before or upon death, including the proceeds of insurance contracts, if any, on the Participant's life. The provisions of this Article shall apply to a Participant who is vested in amounts attributable to Employer Contributions, Employee contributions (or both) at the time of death or distribution. XIII. LOANS TO PARTICIPANTS 13.01 Availability of Loans to Participants. (a) If the Employer has elected in the Adoption Agreement to make loans available to Participants, a Participant may apply for a loan from the Plan subject to the limitations and other provisions of this Article. (b) The Employer shall establish written guidelines governing the granting of loans, provided that such guidelines are approved by the Plan Administrator and are not inconsistent with the provisions of this Article, and that loans are made available to all Participants on a reasonably equivalent basis. 13.02 Terms and Conditions of Loans to Participants. Any loan by the Plan to a Participant under Section 13.01 of the Plan shall satisfy the following requirements: (a) Availability. Loans shall be made available to all Participants on a reasonably equivalent basis. 21 (b) Nondiscrimination. Loans shall not be made to highly compensated Employees in an amount greater than the amount made available to other Employees. (c) Interest Rate. Loans must be adequately secured and bear a reasonable interest rate. (d) Loan Limit. No Participant loan shall exceed the present value of the Participant's Nonforfeitable Interest in his /her Account. (e) Foreclosure. In the event of default, foreclosure on the note and attachment of security will not occur until a distributable event occurs in the Plan. (f) Reduction ofAccount. Notwithstanding any other provision of this Plan, the portion of the Participant's vested Account balance used as a security interest held by the Plan by reason of a loan outstanding to the Participant shall be taken into account for purposes of determining the amount of the Account balance payable at the time of death or distribution, but only if the reduction is used as repayment of the loan. If less than one hundred percent (100 %) of the Participant's nonforfeitable Account balance (determined without regard to the preceding sentence) is payable to the surviving spouse, then the Account balance shall be adjusted by first reducing the nonforfeitable Account bal- ance by the amount of the security used as repayment of the loan, and then determining the benefit payable to the surviving spouse. (g) Amount of Loan. At the time the loan is made, the principal amount of the loan plus the outstanding balance (principal plus accrued interest) due on any other outstanding loans to the Participant or Beneficiary from the Plan and from all other plans of the Employer that are qualified employer plans under section 72(p)(4) of the Code shall not exceed the lesser of: (1) $50,000, reduced by the excess (if any) of (i) The highest outstanding balance of loans from the Plan during the one (1) year period ending on the day before the date on which the loan is made, over (ii) The outstanding balance of loans from the Plan on the date on which such loan is made; or (2) One -half (1/2) of the value of the Participant's Nonforfeitable Interest in all of his /her Accounts under this Plan (or $10,000, if greater, for loans prior to January 1, 2006). For the purpose of the above limitation, all loans from all qualified employer plans, including 457(b) plans, under Code section 72(p)(4) of the Code are aggregated. (h) Application for Loan. The Participant must give the Employer adequate written notice, as determined by the Employer, of the amount and desired time for receiving a loan. No more than one (1) loan may be made by the Plan to a Participant in any calendar year. No loan shall be approved if an existing loan from the Plan to the Participant is in default to any extent. (i) Length of Loan. The terms of any loan issued or renegotiated after December 31, 1993, shall require the Participant to repay the loan in substantially equal installments of principal and interest, at least quarterly (except as otherwise provided in Treasury Regulation section 1.72(p) -1, Q8cA -9 for certain leave of absence and military leave), over a period that does not exceed five (5) years from the date of the loan; provided, however, that if the proceeds of the loan are applied by the Participant to acquire any dwelling unit that is to be used within a reasonable time after the loan is made as the princi- pal residence of the Participant, the five (5) year limit shall not apply. In this event, the period of repayment shall not exceed a reasonable period determined by the Employer. Principal installments 22 and interest payments otherwise due may be suspended during an authorized leave of absence, if the promissory note so provides, but not beyond the original term permitted under this Subsection (i), with a revised payment schedule (within such term) instituted at the end of such period of suspension. If the Participant fails to make any installment payment, the Plan Administrator may, according to Treasury Regulation 1.72(p) -1, allow a cure period, which cure period cannot continue beyond the last day of the calendar quarter following the calendar quarter in which the required installment payment was due. (j) Prepayment. The Participant shall be permitted to repay the loan in whole or in part at any time prior to maturity, without penalty. (k) Note. The loan shall be evidenced by a promissory note executed by the Participant and delivered to the Employer, and shall bear interest at a reasonable rate determined by the Employer. Unless waived by a Participant, any plan loan that is outstanding on the date that active duty military service begins will accrue interest at a rate of no more than 6% during the period of military service in accordance with the provisions of the Servicemembers Civil Relief Act (SCRA), 50 USC App. § 526 and subject to the notice requirements contained therein. This limitation applies even if loan payments are suspended during the period of military service as permitted under the Plan and Treasury regulations. (1) Security. The loan shall be secured by an assignment of that portion the Participant's right, title and interest in and to his /her Employer Contribution Account (to the extent vested), Participant Contribution Account, and Rollover Account that is equal to fifty percent (50 %) of the Participant's Account (to the extent vested). (m) Assignment or Pledge. For the purposes of paragraphs (h) and (i), assignment or pledge of any portion of the Participant's interest in the Plan and a loan, pledge, or assignment with respect to any insurance contract purchased under the Plan, will be treated as a loan. (n) Spousal Consent. If the Employer elected the QJSA Election in the Adoption Agreement, the Participant must first obtain his or her spouse's notarized consent to the loan. (o) Other Terms and Conditions. The Employer shall fix such other terms and conditions of the loan as it deems necessary to comply with legal requirements, to maintain the qualification of the Plan and Trust under section 401(a) of the Code, or to prevent the treatment of the loan for tax purposes as a distribution to the Participant. The Employer, in its discretion for any reason, may fix other terms and conditions of the loan, not inconsistent with the provisions of this Article. 13.03 Participant Loan Accounts. (a) Upon approval of a loan to a Participant by the Employer, an amount not in excess of the loan shall be transferred from the Participant's other investment fund(s), described in Section 6.05 of the Plan, to the Participant's Loan Account as of the Accounting Date immediately preceding the agreed upon date on which the loan is to be made. (b) The assets of a Participant's Loan Account may be invested and reinvested only in promissory notes received by the Plan from the Participant as consideration for a loan permitted by Section 13.01 of the Plan or in cash. Uninvested cash balances in a Participant's Loan Account shall not bear interest. No person who is otherwise a fiduciary of the Plan shall be liable for any loss, or by reason of any breach, that results from the Participant's exercise of such control. (c) Repayment of principal and payment of interest shall be made by payroll deduction or, where repay- ment cannot be made by payroll deduction, by check, and shall be invested in one (1) or more other 23 investment funds, in accordance with Section 6.05 of the Plan, as of the next Accounting Date after payment thereof to the Trust. The amount so invested shall be deducted from the Participant's Loan Account. (d) The Employer shall have the authority to establish other reasonable rules, not inconsistent with the provisions of the Plan, governing the establishment and maintenance of Participant Loan Accounts. XIV. PLAN AMENDMENT, TERMINATION AND OPTIONAL PROVISIONS 14.01 Amendment by Employer. The Employer reserves the right, subject to Section 14.02 of the Plan, to amend the Plan from time to time by either: (a) Filing an amended Adoption Agreement to change, delete, or add any optional provision; or (b) Continuing the Plan in the form of an amended and restated Plan and Trust. No amendment to the Plan shall be effective to the extent that it has the effect of decreasing a Participant's accrued benefit. Notwithstanding the preceding sentence, a Participant's Account balance may be reduced to the extent permitted under section 412(c)(8) of the Code. For purposes of this paragraph, a Plan amendment which has the effect of decreasing a Participant's Account balance or eliminating an optional form of benefit, with respect to benefits attributable to service before the amendment shall be treated as reducing an accrued benefit. Furthermore, if the vesting schedule of the Plan is amended, in the case of an Employee who is a Participant as of the later of the date such amendment is adopted or the date it becomes effective, the nonforfeitable percentage (determined as of such date) of such Employee's right to his /her Employer- derived accrued benefit will not be less than his percentage computed under the plan without regard to such amendment. No amendment to the Plan shall be effective to eliminate or restrict an optional form of benefit. The preceding sentence shall not apply to a Plan amendment that eliminates or restricts the ability of a Participant to receive payment of his or her Account balance under a particular optional form of benefit if the amendment provides a single -sum distribution form that is otherwise identical to the optional form of benefit being eliminated or restricted. For this purpose, a single -sum distribution form is otherwise identical only if the single -sum distribution form is identical in all respects to the eliminated or restricted optional form of benefit (or would be identical except that it provides greater rights to the Participant) except with respect to the timing of payments after commencement. The Employer may (1) change the choice of options in the Adoption Agreement, (2) add overriding language in the Adoption Agreement when such language is necessary to satisfy sections 415 or 416 of the Code because of the required aggregation of multiple plans, (3) amend administrative provisions of the trust or custodial document in the case of a nonstandardized plan and make more limited amendments in the case of a standardized plan such as the name of the plan, employer, trustee or custodian, plan administrator and other fiduciaries, the trust year, and the name of any pooled trust in which the Plan's trust will participate, (4) add certain sample or model amendments published by the Internal Revenue Service or other required good faith amendments which specifically provide that their adoption will not cause the plan to be treated as individually designed, and (5) add or change provisions permitted under the Plan and /or specify or change the effective date of a provision as permitted under the Plan and correct obvious and unambiguous typographical errors and /or cross - references that merely correct a reference but that do not in any way change the original intended meaning of the provisions. 14.02 Amendment of Vesting Schedule. If the Plan's vesting schedule is amended, or the Plan is amended in any way that directly or indirectly affects the computation of the Participant's nonforfeitable percentage, each Participant may elect, within a reasonable period after the adoption of the amendment or change, to have the nonforfeitable percentage computed under the Plan without regard to such amendment or change. 24 The period during which the election may be made shall commence with the date the amendment is adopted or deemed to be made and shall end on the latest of: (a) Sixty (60) days after the amendment is adopted; (b) Sixty (60) days after the amendment becomes effective; or (c) Sixty (60) days after the Participant is issued written notice of the amendment by the Employer or Plan Administrator. 14.03 Termination by Employer. The Employer reserves the right to terminate this Plan. However, in the event of such termination no part of the Trust shall be used or diverted to any purpose other than for the exclusive benefit of the Participants or their Beneficiaries, except as provided in this Section. Upon Plan termination or partial termination, all Account balances shall be valued at their fair market value and the Participant's right to his /her Employer Contribution Account shall be one hundred percent (100 %) vested and nonforfeitable. Such amount and any other amounts held in the Participant's other Accounts shall be maintained for the Participant until paid pursuant to the terms of the Plan. Any amounts held in a suspense account, after all liabilities of the Plan to Participants and Beneficiaries have been satisfied or provided for, shall be paid to the Employer in accordance with the Code and regulations thereunder. In the event that the Commissioner of Internal Revenue determines that the Plan is not initially qualified under the Internal Revenue Code, any contribution made by the Employer incident to that initial qualification must be returned to the Employer within one year after the date the initial qualification is denied, but only if the application for the qualification is made by the time prescribed by law for filing the Employer's return for the year in which the Plan is adopted, or such later date as the Secretary of the Treasury may prescribe. 14.04 Discontinuance of Contributions. A permanent discontinuance of contributions to the Plan by the Employer, unless an amended and restated Plan is established, shall constitute a Plan termination. In the event of a complete discontinuance of contributions under the Plan, the Account balance of each affected Participant shall be nonforfeitable. 14.05 Amendment by Plan Administrator. The Plan Administrator may amend this Plan upon thirty (30) days written notification to the Employer; provided, however, that any such amendment must be for the express purpose of maintaining compliance with applicable federal laws and regulations of the Internal Revenue Service. Such amendment shall become effective unless, within such 30 -day period, the Employer notifies the Administrator, in writing, that it disapproves such amendment, in which case such amendment shall not become effective. In the event of such disapproval, the Administrator shall be under no obligation to continue acting as Administrator hereunder. 14.06 Optional Provisions. Any provision which is optional under this Plan shall become effective if and only if elected by the Employer and agreed to by the Plan Administrator. XV ADMINISTRATION 15.01 Powers of the Employer. The Employer shall have the following powers and duties: (a) To appoint and remove, with or without cause, the Plan Administrator; (b) To amend or terminate the Plan pursuant to the provisions of Article XIV; (c) To appoint a committee to facilitate administration of the Plan and communications to Participants; 25 (d) To decide all questions of eligibility (1) for Plan participation, and (2) upon appeal by any Participant, Employee or Beneficiary, for the payment of benefits; (e) To engage an independent qualified public accountant, when required to do so by law, to prepare an- nually the audited financial statements of the Plan's operation; (f) To take all actions and to communicate to the Plan Administrator in writing all necessary information to carry out the terms of the Plan and Trust; and (g) To notify the Plan Administrator in writing of the termination of the Plan. 15.02 Duties of the Plan Administrator. The Plan Administrator shall have the following powers and duties: (a) To construe and interpret the provisions of the Plan; (b) To maintain and provide such returns, reports, schedules, descriptions, and individual Account statements, as are required by law within the times prescribed by law; and to furnish to the Employet, upon request, copies of any or all such materials, and further, to make copies of such instruments, reports, descriptions, and statements as are required by law available for examination by Participants and such of their Beneficiaries who are or may be entitled to benefits under the Plan in such places and in such manner as required by law; (c) To obtain from the Employer such information as shall be necessary for the proper administration of the Plan; (d) To determine the amount, manner, and time of payment of benefits hereunder; (e) To appoint and retain such agents, counsel, and accountants for the purpose of properly administer- ing the Plan; (f) To distribute assets of the Trust to each Participant and Beneficiary in accordance with Article X of the Plan; (g) To pay expenses from the Trust pursuant to Section 6.03 of the Plan; and (h) To do such other acts reasonably required to administer the Plan in accordance with its provisions or as may be provided for or required by law. 15.03 Protection of the Employer. The Employer shall not be liable for the acts or omissions of the Plan Administrator, but only to the extent that such acts or omissions do not result from the Employer's failure to provide accurate or timely information as required or necessary for proper administration of the Plan. 15.04 Protection of the Plan Administrator. The Plan Administrator may rely upon any certificate, notice or direction purporting to have been signed on behalf of the Employer which the Plan Administrator believes to have been signed by a duly designated official of the Employer. 15.05 Resignation or Removal of Plan Administrator. The Plan Administrator may resign at any time effective upon sixty (60) days prior written notice to the Employer. The Plan Administrator may be removed by the Employer at any time upon sixty (60) days prior written notice to the Plan Administrator. Upon the 26 resignation or removal of the Plan Administrator, the Employer may appoint a successor Plan Administrator; failing such appointment, the Employer shall assume the powers and duties of Plan Administrator. Upon the resignation or removal of the Plan Administrator, any Trust assets invested by or held in the name of the Plan Administrator shall be transferred to the trustee in cash or property, at fair market value, except that the return of Trust assets invested in a contract issued by an insurance company shall be governed by the terms of that contract. 15.06 No Termination Penalty. The Plan Administrator shall have no authority or discretion to impose any termination penalty upon its removal. 15.07 Decisions of the Plan Administrator. All constructions, determinations, and interpretations made by the Plan Administrator pursuant to Section 15.02(a) or (d) or by the Employer pursuant to Section 15.01(d) shall be final and binding on all persons participating in the Plan, given deference in all courts of law to the greatest extent allowed by applicable law, and shall not be overturned or set aside by any court of law unless found to be arbitrary or capricious, or made in bad faith. XVI. MISCELLANEOUS 16.01 Nonguarantee of Employment. Nothing contained in this Plan shall be construed as a contract of employment between the Employer and any Employee, or as a right of an Employee to be continued in the employment of the Employer, as a limitation of the right of the Employer to discharge any of its Employees, with or without cause. 16.02 Rights to Trust Assets. No Employee or Beneficiary shall have any right to, or interest in, any assets of the Trust upon termination of his /her employment or otherwise, except as provided from time to time under this Plan, and then only to the extent of the benefits payable under the Plan to such Employee or Beneficiary out of the assets of the Trust. All payments of benefits as provided for in this Plan shall be made solely out of the assets of the Trust and none of the fiduciaries shall be liable therefor in any manner. 16.03 Nonalienation of Benefits. Except as provided in Section 16.04 of the Plan, benefits payable under this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any kind, either voluntary or involuntary, prior to actually being received by the person entitled to the benefit under the terms of the Plan; and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable hereunder, shall be void. The Trust shall not in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits hereunder. 16.04 Qualified Domestic Relations Order. Notwithstanding Section 16.03 of the Plan, amounts may be paid with respect to a Participant pursuant to a domestic relations order, but if and only if the order is determined to be a qualified domestic relations order within the meaning of section 414(p) of the Code or any domestic relations order entered before January 1, 1985. 16.05 Nonforfeitability of Benefits. Subject only to the specific provisions of this Plan, nothing shall be deemed to deprive a Participant of his /her right to the Nonforfeitable Interest to which he /she becomes entitled in accord- ance with the provisions of the Plan. 16.06 Incompetency of Payee. In the event any benefit is payable to a minor or incompetent, to a person otherwise under legal disability, or to a person who, in the sole judgment of the Employer, is by reason of advanced age, illness, or other physical or mental incapacity incapable of handling the disposition of his /her property, the Employer may apply the whole or any part of such benefit directly to the care, comfort, maintenance, sup- port, education, or use of such person or pay or distribute the whole or any part of such benefit to: (a) The parent of such person; 27 (b) The guardian, committee, or other legal representative, wherever appointed, of such person; (c) The person with whom such person resides; (d) Any person having the care and control of such person; or (e) Such person personally. The receipt of the person to whom any such payment or distribution is so made shall be full and complete dis- charge therefor. 16.07 Inability to Locate Payee. Anything to the contrary herein notwithstanding, if the Employer is unable, after reasonable effort, to locate any Participant or Beneficiary to whom an amount is payable hereunder, such amount shall be forfeited and held in the Trust for application against the next succeeding Employer Contribution or contributions required to be made hereunder. Notwithstanding the foregoing, however, such amount shall be reinstated, by means of an additional Employer contribution, if and when a claim for the forfeited amount is subsequently made by the Participant or Beneficiary or if the Employer receives proof of death of such person, satisfactory to the Employer. To the extent not inconsistent with applicable law, any benefits lost by reason of escheat under applicable state law shall be considered forfeited and shall not be reinstated. 16.08 Mergers, Consolidations, and Transfer of Assets. The Plan shall not be merged into or consolidated with any other plan, nor shall any of its assets or liabilities be transferred into any such other plan, unless each Par- ticipant in the Plan would (if the Plan then terminated) receive a benefit immediately after the merger, con- solidation, or transfer that is equal to or greater than the benefit he /she would have been entitled to receive immediately before the merger, consolidation, or transfer (if the Plan had then terminated). 16.09 Employer Records. Records of the Employer as to an Employee's or Participant's Period of Service, termina- tion of service and the reason therefor, leaves of absence, reemployment, Earnings, and Compensation will be conclusive on all persons, unless determined to be incorrect. 16.10 Gender and Number. The masculine pronoun, whenever used herein, shall include the feminine pronoun, and the singular shall include the plural, except where the context requires otherwise. 16.11 Applicable Law. The Plan shall be construed under the laws of the State where the Employer is located, except to the extent superseded by federal law. The Plan is established with the intent that it meets the requirements under the Code. The provisions of this Plan shall be interpreted in conformity with these requirements. In the event of any conflict between the Plan and a policy or contract issued hereunder, the Plan provisions shall control; provided, however, no Plan amendment shall supersede an existing policy or contract unless such amendment is required to maintain qualification under section 401(a) and 414(d) of the Code. XVII. SPOUSAL BENEFIT REQUIREMENTS 17.01 Application. Effective as of January 1, 2006, where elected by the Employer in the Adoption Agreement (the "QJSA Election "), the provisions of this Article shall take precedence over any conflicting provision in this Plan. If elected, the provisions of this Article shall apply to any Participant who is credited with any Period of Service with the Employer on or after August 23, 1984, and such other Participants as provided in Section 17.05. 17.02 Qualified Joint and Survivor Annuity. Unless an optional form of benefit is selected pursuant to a Qualified Election within the ninety (90) day period ending on the Annuity Starting Date, a married Participant's Vested Account Balance will be paid in the form of a Qualified Joint and Survivor Annuity and an unmarried 28 Participant's Vested Account Balance will be paid in the form of a Straight Life Annuity. The Participant may elect to have such annuity distributed upon the attainment of the Earliest Retirement Age under the Plan. 17.03 Qualified Preretirement Survivor Annuity. If a Participant dies before the Annuity Starting Date, then fifty percent (50 %) of the Participant's Vested Account Balance shall be applied toward the purchase of an annuity for the life of the Surviving Spouse; the remaining portion shall be paid to such Beneficiaries (which may include such Spouse) designated by the Participant. Notwithstanding the foregoing, the Participant may waive the spousal annuity by designating a different Beneficiary within the Election Period pursuant to a Qualified Election. To the extent that less than one hundred percent (100 %) of the vested Account balance is paid to the Surviving Spouse, the amount of the Participant's Account derived from Employee contributions will be allocated to the Surviving Spouse in the same proportion as the amount of the Participant's Account derived from Employee contributions is to the Participant's total Vested Account Balance. The Surviving Spouse may elect to have such annuity distributed within a reasonable period after the Participant's death. Further, such Spouse may elect to receive any death benefit payable to him /her hereunder in any of the forms available to the Participant under Section 11.02. 17.04 Notice Requirements. (a) In the case of a Qualified Joint and Survivor Annuity as described in Section 17.02, the Plan Admin- istrator shall, no less than thirty (30) days and no more than ninety (90) days prior to the Annuity Starting Date, provide each Participant a written explanation of: (i) the terms and conditions of a Qualified Joint and Survivor Annuity; (ii) the Participant's right to make and the effect of an election to waive the Qualified Joint and Survivor Annuity form of benefit; (iii) the rights of a Participant's Spouse; and (iv) the right to make, and the effect of, a revocation of a previous election to waive the Qualified Joint and Survivor Annuity. However, if the Participant, after having received the written explanation, affirmatively elects a form of distribution and the Spouse consents to that form of distribution (if necessary), benefit payments may commence less than 30 days after the written explanation was provided to the Participant, provided that the following requirements are met: (1) The Plan Administrator provides information to the Participant clearly indicating that the Participant has a right to at least 30 days to consider whether to waive the Qualified Joint and Survivor Annuity and consent to a form of distribution other than a Qualified Joint and Survivor Annuity; (2) The Participant is permitted to revoke an affirmative distribution election at least until the Annuity Starting Date, or if later, at any time prior to the expiration of the 7 -day period that begins the day after the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant; (3) The Annuity Starting Date is after the date that the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant; and (4) Distribution in accordance with the affirmative election does not commence before the expiration of the 7 -day period that begins after the day after the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant. (b) In the case of a Qualified Preretirement Survivor Annuity as described in Section 17.03, the Plan Administrator shall provide each Participant within the applicable period for such Participant a writ- ten explanation of the Qualified Preretirement Survivor Annuity in such terms and in such manner as would be comparable to the explanation provided for meeting the requirements of Subsection (a) applicable to a Qualified Joint and Survivor Annuity. The applicable period for a Participant is whichever of the following periods ends last: (i) the period beginning with the first day of the Plan Year in which the Participant attains age thirty-two (32) 29 and ending with the close of the Plan Year preceding the Plan Year in which the Participant attains age thirty-five (35); (ii) a reasonable period ending after the individual becomes a Participant; (iii) a reasonable period ending after Subsection (c) ceases to apply to the Participant; (iv) a reasonable period ending after this Article first applies to the Participant. Notwithstanding the foregoing, notice must be provided within a reasonable period ending after separation from service in the case of a Participant who separates from service before attaining age thirty-five (35). For purposes of applying the preceding paragraph, a reasonable period ending after the enumerated events described in (ii), (iii) and (iv) is the end of the two (2) year period beginning one (1) year prior to the date the applicable event occurs, and ending one (1) year after that date. In the case of a Participant who separates from service before the Plan Year in which age thirty-five (35) is attained, notice shall be provided within the two (2) year period beginning one (1) year prior to separation and ending one (1) year after separation. If such a Participant thereafter returns to employment with the Employer, the applicable period for such Participant shall be redetermined. (c) Notwithstanding the other requirements of this Section, the respective notices prescribed by this Section need not be given to a Participant if (1) the Plan "fully subsidizes" the costs of a Qualified Joint and Survivor Annuity or Qualified Preretirement Survivor Annuity, and (2) the Plan does not allow the Participant to waive the Qualified Joint and Survivor Annuity or Qualified Preretirement Survivor Annuity and does not allow a married Participant to designate a non - Spouse Beneficiary. For purposes of this Subsection (c), a plan fully subsidizes the costs of a benefit if no increase in cost or decrease in benefits to the Participant may result from the Participant's failure to elect another benefit. 17.05 Definitions. For the purposes of this Section, the following definitions shall apply: (a) Annuity Starting Date: The first day of the first period for which an amount is paid as an annuity or any other form. (b) Election Period: The period which begins on the first day of the Plan Year in which the Participant attains age thirty-five (35) and ends on the date of the Participant's death. If a Participant separates from service prior to the first day of the Plan Year in which age thirty-five (35) is attained, with respect to the Account balance as of the date of separation, the Election Period shall begin on the date of separation. Pre -age thirty -five (35) waiver: A Participant who will not yet attain age thirty-five (35) as of the end of any current Plan Year may make a special Qualified Election to waive the Qualified Preretirement Survivor Annuity for the period beginning on the date of such election and ending on the first day of the Plan Year in which the Participant will attain age thirty-five (35). Such election shall not be valid unless the Participant receives a written explanation of the Qualified Preretirement Survivor Annuity in such terms as are comparable to the explanation required under Section 17.04(a). Qualified Preretirement Survivor Annuity coverage will be automatically reinstated as of the first day of the Plan Year in which the Participant attains age thirty-five (35). Any new waiver on or after such date shall be subject to the full requirements of this Article. (c) Earliest Retirement Age: The earliest date on which, under the Plan, the Participant could elect to receive retirement benefits. (d) Qualified Election: A waiver of a Qualified Joint and Survivor Annuity or a Qualified Preretirement Survivor Annuity. Any waiver of a Qualified Joint and Survivor Annuity or a Qualified Preretirement Survivor Annuity shall not be effective unless: (a) the Participant's Spouse consents in writing to the election; (b) the election designates a specific Beneficiary, including any class of Beneficiaries or any contingent Beneficiaries, which may not be changed without spousal consent (or the Spouse iit1 expressly permits designations by the Participant without any further spousal consent); (c) the Spouse's consent acknowledges the effect of the election; and (d) the Spouse's consent is witnessed by a Plan representative or notary public. Additionally, a Participant's waiver of the Qualified Joint and Survivor Annuity shall not be effective unless the election designates a form of benefit payment which may not be changed without spousal consent (or the Spouse expressly permits designations by the Participant without any further Spousal consent). If it is established to the satisfaction of a Plan representative that there is no Spouse or that the Spouse cannot be located, a waiver will be deemed a Qualified Election. Any consent by a Spouse obtained under this provision (or establishment that the consent of a Spouse may not be obtained) shall be effective only with respect to such Spouse. A consent that permits designations by the Participant without any requirement of further consent by such Spouse must acknowledge that the Spouse has the right to limit consent to a specific Beneficiary, and a specific form of benefit where applicable, and that the Spouse voluntarily elects to relinquish either or both of such rights. A revocation of a prior waiver may be made by a Participant without the consent of the Spouse at any time before the commencement of benefits. The number of revocations shall not be limited. No consent obtained under this provision shall be valid unless the Participant has received notice as provided in Section 17.04. (e) Qualified joint and Survivor Annuity: An immediate annuity for the life of the Participant with a survivor annuity for the life of the Spouse which is fifty percent (50 %) of the amount of the annuity which is payable during the joint lives of the Participant and the Spouse and which is the amount of benefit which can be purchased with the Participant's Vested Account Balance. (f) Spouse (Surviving Spouse): The Spouse or Surviving Spouse of the Participant, provided that a former Spouse will be treated as the Spouse or Surviving Spouse and a current Spouse will not be treated as the Spouse or Surviving Spouse to the extent provided under a qualified domestic relations order as described in section 414(p) of the Code. (g) Straight Life Annuity: An annuity payable in equal installments for the life of the Participant that terminates upon the Participant's death. (h) Vested Account Balance: The aggregate value of the Participant's vested Account balances derived from Employer and Employee contributions (including rollovers), whether vested before or upon death, including the proceeds of insurance contracts, if any, on the Participant's life. The provisions of this Article shall apply to a Participant who is vested in amounts attributable to Employer Contributions, Employee contributions (or both) at the time of death or distribution. 17.06 Annuity Contracts. Where benefits are to be paid in the form of a life annuity pursuant to the terms of this Article, a nontransferable annuity contract shall be purchased from a life insurance company and distributed to the Participant or Surviving Spouse, as applicable. The terms of any annuity contract purchased and distributed by the Plan shall comply with the requirements of this Plan and section 417 of the Code. 31 DECLARATION OF TRUST This Declaration of Trust (the "Group Trust Agreement ") is made as of the 19th day of May, 2001, by VantageTrust Company, which declares itself to be the sole Trustee of the trust hereby created. WHEREAS, the ICMA Retirement Trust was created as a vehicle for the commingling of the assets of governmental plans and governmental units described in Section 818(a)(6) of the Internal Revenue Code of 1986, as amended, pursuant to a Declaration of Trust dated October 4, 1982, as subsequently amended, a copy of which is attached hereto and incorporated by reference as set out below (the "ICMA Declaration "); and WHEREAS, the trust created hereunder (the "Group Trust ") is intended to meet the requirements of Revenue Ruling 81- 100, 1981 -1 C.B. 326, and is established as a common trust fund within the meaning of Section 391:1 of Title 35 of the New Hampshire Revised Statutes Annotated, to accept and hold for investment purposes the assets of the Deferred Compensation and Qualified Plans held by and through the ICMA Retirement Trust. NOW, THEREFORE, the Group Trust is created by the execution of this Declaration of Trust by the Trustee and is established with respect to each Deferred Compensation and Qualified Plan by the transfer to the Trustee of such Plan's assets in the ICMA Retirement Trust, by the Trustees thereof, in accord with the following provisions: Incorporation of ICMA Declaration by Reference; ICMA By -Laws. Except as otherwise provided in this Group Trust Agreement, and to the extent not inconsistent herewith, all provisions of the ICMA Declaration are incorporated herein by reference and made a part hereof, to be read by substituting the Group Trust for the Retirement Trust and the Trustee for the Board of Trustees referenced therein. In this respect, unless the context clearly indicates otherwise, all capitalized terms used herein and defined in the ICMA Declaration have the meanings assigned to them in the ICMA Declaration. In addition, the By -Laws of the ICMA Retirement Trust, as the same may be amended from time -to -time, are adopted as the By -Laws of the Group Trust to the extent not inconsistent with the terms of this Group Trust Agreement. Notwithstanding the foregoing, the terms of the ICMA Declaration and By -Laws are further modified with respect to the Group Trust created hereunder, as follows: (a) any reporting, distribution, or other obligation of the Group Trust vis -a -vis any Deferred Compensation Plan, Qualified Plan, Public Employer, Public Employer Trustee, or Employer Trust shall be deemed satisfied to the extent that such obligation is undertaken by the ICMA Retirement Trust (in which case the obligation of the Group Trust shall run to the ICMA Retirement Trust); and (b) all provisions dealing with the number, qualification, election, term and nomination of Trustees shall not apply, and all other provisions relating to trustees (including, but not limited to, resignation and removal) shall be interpreted in a manner consistent with the appointment of a single corporate trustee. Compliance with Revenue Procedure 81 -100. The requirements of Revenue Procedure 81 -100 are applicable to the Group Trust as follows: (a) Pursuant to the terms of this Group Trust Agreement and Article X of the By -Laws, investment in the Group Trust is limited to assets of Deferred Compensation and Qualified Plans, investing through the ICMA Retirement Trust. (b) Pursuant to the By -Laws, the Group Trust is adopted as a part of each Qualified Plan that invests herein through the ICMA Retirement Trust. (c) In accord with the By -Laws, that part of the Group Trust's corpus or income which equitably belongs to any Deferred Compensation and Qualified Plan may not be used for or diverted to any purposes other than for the exclusive benefit of the Plan's employees or their beneficiaries who are entitled to benefits under such Plan. (d) In accord with the By -Laws, no Deferred Compensation Plan or Qualified Plan may assign any or part of its equity or interest in the Group Trust, and any purported assignment of such equity or interest shall be void. Governing Law. Except as otherwise required by federal, state or local law, this Declaration of Trust (including the ICMA Declaration to the extent incorporated herein) and the Group Trust created hereunder shall be construed and determined in accordance with applicable laws of the State of New Hampshire. 4. Judicial Proceedings. The Trustee may at any time initiate an action or proceeding in the appropriate state or federal courts within or outside the state of New Hampshire for the settlement of its accounts or for the determination of any question of construction which may arise or for instructions. IN WITNESS WHEREOF, the Trustee has executed this Declaration of Trust as of the day and year first above written. VANTAGETRUST COMPANY By: 1U c11 Name: Paul F. Gallagher Title: Secretary THIS PAGE INTENTIONALLY LEFT BLANK ICMA -RC Services LLC, a wholly owned broker - dealer subsidiary of ICMA -RC, member NASD /SIPC. ICAAC ATTN NEW BUSINESS UNIT ANALYST P.O. BOX 96224 WASHINGTON, DC 20090 -6220 1- 840 -669 -7400 WWW.ICMARC.ORG EN ESPANOL LLAME AL 1- 800 -669 -8216 BKT000 -015- 200610 -452 Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: April 5, 2007 No.: Budget and Finance 11.c. Type of Action: APPROVE RESOLUTION subject: APPROVE A BOARD RESOLUTION TO ADOPT THE REVISED SECTION 457 DEFERRED COMPENSATION PLAN DOCUMENT Submitted By: Initiating Dept. /Div.: Debbie Ratcliff, Controller Administrative /Finance & Accounting REVIEWED AND RECOMMENDED FOR BOARD ACTION: D. Ralc FyMyAraves James M. Kelly, General Manager ISSUE: Board authorization is needed to adopt the revised Section 457 Deferred Compensation Plan Document. RECOMMENDATION: Approve a Board Resolution adopting the revised Section 457 Deferred Compensation Plan Document. FINANCIAL IMPACTS: None. ALTERNATIVES /CONSIDERATIONS: New regulations were issued by the Internal Revenue Service which require plan amendments. BACKGROUND: The District established a Section 457 Deferred Compensation Plan covering all full -time employees in January 1976. The plan is administered by the District's Deferred Compensation Plan Advisory Committee. ICMA -RC, in an effort to continue to provide plan sponsors and participants with more flexible plans, has amended the 457 Plan Document. Four amendments have been included in the revised 457 Plan Document. These four amendments include deferral of sick, vacation and back pay (timing requirements), protection for employees who serve in the military, in- service distributions at age 70 -% , and in- service distributions of rollover assets. This fourth item, however, is available only upon request. Staff does not recommend including in- service distributions of rollover assets in the District's plan. The reason behind staff's recommendation is that these plans are set up as savings accounts to be used at retirement. Additionally, there would be increased administration of these separate funds and additional paperwork. Highlights of the new provisions (see Attachment A) and a revised plan document have been provided by ICMA -RC. The other two deferred compensation carriers that the District utilizes (i.e., ITT Hartford and Nationwide Retirement Solutions) have reviewed and approved the plan documents as well. The changes to the Section 457 Deferred N: \ADMINSUP\ADMIN \POSPAPERWpprove Resolution 457 04- 19- 07.doc Page 1 of 4 POSITION PAPER Board Meeting Date: April 5, 2007 Subject: APPROVE A BOARD RESOLUTION TO ADOPT THE REVISED SECTION 457 DEFERRED COMPENSATION PLAN DOCUMENT Compensation Plan Document were reviewed in detail with the Board Budget & Finance Committee. RECOMMENDED BOARD ACTION: The Deferred Compensation Plan Advisory Committee recommends that the Board approve a Resolution adopting the revised Section 457 Deferred Compensation Plan Document. N:\ ADMINSUP\ADMIN \POSPAPER\Approve Resolution 457 04- 19- 07.doc Page 2 of 4 ATTACHMENT A OVERVIEW OF THE 451 DEFERRED COMPENSATION PLAN DOCUMENT CHANGES As your 457 deferred compensation plan provider, ICMA -R( will take care of most additional administrative tasks associated with the plan document changes. Your Client Services Team is available at 1- 800 - 326 -7272 to answer any questions you may have. Page 3 of 4 New Document Pion Employer Item Old Document Change Document Purpose Administrative Reference Actions 1. Deferral of Timing requirements Pursuant to proposed IRS regulations Section 5.03 To clarify the timing Employers should Sick, Vacation and required a participant issued under Section 415 of the Code, requirements in familiarize themselves Back Pay (riming to be an employee the Plan may permit deferrals from place for deferrals with the new timing Requirements) in the month that compensation, including sick, vacation and of accumulated pay requirements. the election to defer back pay, so long as the amounts are paid upon an employee's accumulated sick, within 21/2 months following severance separation from vacation and back from employment and the other service. pay was made. This requirements of Sections 451(6) and 415 was modified by of the Code are met. Additionally, the the proposed IRS agreement to defer such amounts must be regulations (explained entered into prior to the first day of the in the "New Document month in which the amounts otherwise Change" column to the would be paid or made available. right). 2. Protection of Not available (provision An employee whose employment is Section 5.06 Added language Employers should be aware Person Who Serves was made available interrupted by qualified military service to the document of this legislative change in a Uniformed when the final USERRA or who is on leave of absence for to comply with and the potential impact on Service regulations were issued qualified military service may elect to amended USERRA employees who are serving on December 19, contribute additional amounts to the regulations issued in the military. 2005.) 457 deferred compensation plan upon on December 19, resuming employment. The employee 2005. may contribute an additional amount equal to what he /she could have elected to defer during the period of military service had employment continued without interruption or leave, reduced by any deferred compensation actually made by the employee during the period of interruption or leave. This right applies for five years following the resumption of employment (or for a period equal to three times the period of the interruption or leave, if sooner). 3. In- Service Not available. Added the ability for the employer to offer Section 7.09 Provides increased Complete Attachment D on Distributions — Age in- service distributions for participants withdrawal options p.6 if you do not wish to 70 Y2 age 70' /z or older. This provision is to employers and offer in- service distributions offered by default. If you do not wish to offer this option, you will their employees. to participants who are age 70' /s or older. need to indicate "No" in Section 111.1 of Attachment D (p.6). 4. In- Service Not available. Added the ability for the employer to Section 7.08 Provides increased Complete Attachment D on Distributions offer in- service distributions for rolled- withdrawal options p. 6 if you wish to offer — Rollover Assets in amounts. This provision is not to employers and in- service distributions of offered by default. If you wish to their employees. rollover assets. offer this option, you will need to indicate "Yes" in Section 111.2 of Attachment D (p.6) Page 3 of 4 �4�� TP w % I c Cf t Building Retirement Security a' r � s. �h THIS PAGE INTENTIONALLY LEFT BLANK DEFERRED COMPENSATION PLAN AND TRUST As Amended and Restated Effective January 1, 2006 Article I. Purpose The Employer hereby establishes and maintains the Employer's Deferred Compensation Plan and Trust, hereafter referred to as the "Plan." The Plan consists of the provisions set forth in this document. The primary purpose of this Plan is to provide retirement income and other deferred benefits to the Employees of the Employer and the Employees' Beneficiaries in accordance with the provisions of Section 457 of the Internal Revenue Code of 1986, as amended (the "Code "). This Plan shall be an agreement solely between the Employer and participating Employees. The Plan and Trust forming a part hereof are established and shall be maintained for the exclusive benefit of Participants and their Beneficiaries. No part of the corpus or income of the Trust shall revert to the Employer or be used for or diverted to purposes other than the exclusive benefit of Participants and their Beneficiaries. Article II. Definitions 2.01 Account. The bookkeeping account maintained for each Participant reflecting the cumulative amount of the Participant's Deferred Compensation, including any income, gains, losses, or increases or decreases in market value attributable to the Employer's investment of the Participant's Deferred Compensation, and further reflecting any distributions to the Participant or the Participant's Beneficiary and any fees or expenses charged against such Participant's Deferred Compensation. 2.02 Accounting Date. Each business day that the New York Stock Exchange is open for trading, as provided in Section 6.06 for valuing the Trust's assets. 2.03 Administrator. The person or persons named in writing to carry out certain nondiscretionary administrative functions under the Plan, as hereinafter described. The Employer may remove any person as Administrator upon 75 days' advance notice in writing to such person, in which case the Employer shall name another person or persons to act as Administrator. The Administrator may resign upon 75 days' advance notice in writing to the Employer, in which case the Employer shall name another person or persons to act as Administrator. 2.04 Automatic Distribution Date. April 1 of the calendar year after the Plan Year the Participant attains age 70 -1/2 or, if later, has a Severance Event. 2.05 Beneficiary. The person or persons designated by the Participant in his or her Joinder Agreement who shall receive any benefits payable hereunder in the event of the Participant's death. In the event that the Participant names two or more Beneficiaries, each Beneficiary shall be entitled to equal shares of the benefits payable at the Participant's death, unless otherwise provided in the Participant's Joinder Agreement. If no beneficiary is designated in the Joinder Agreement, if the Designated Beneficiary predeceases the Participant, or if the designated Beneficiary does not survive the Participant for a period of fifteen (15) days, then the estate of the Participant shall be the Beneficiary. If a married Participant resides in a community or marital property state, the Participant shall be responsible for obtaining appropriate consent of his or her spouse in the event the Participant designates someone other than his or her spouse as Beneficiary. The preceding sentence shall not apply with respect to a Deemed IRA under Article IX. 2.06 Deemed IRA. A separate account or annuity established under the Plan that complies with the requirements of Section 408(q) of the Code, the Income Tax Regulations thereunder, and any other IRS guidance. 2.07 Deferred Compensation. The amount of Includible Compensation otherwise payable to the Participant which the Participant and the Employer mutually agree to defer hereunder, any amount credited to a Participant's Account by reason of a transfer under Section 6.09 or 6. 10, a rollover under Section 6. 11, or any other amount which the Employer agrees to credit to a Participant's Account. 2.08 Dollar Limitation. The applicable dollar amount within the meaning of Section 457(b)(2)(A) of the Code, as adjusted for the cost -of- living in accordance with Section 457(e)(15) of the Code. 2.09 Employee. Any individual who provides services for the Employer, whether as an employee of the Employer or as an independent contractor, and who has been designated by the Employer as eligible to participate in the Plan. 2.10 Employer. of the [State /Commonwealth] of Code. which is a political subdivision, agency or instrumentality , described in Section 457(e)(1)(A) of the 2.11 457 Catch -Up Dollar Limitation. Twice the Dollar Limitation. 2.12 Includible Compensation. Includible Compensation of a Participant means "compensation," as defined in Section 415(c)(3) of the Code, for services performed for the Employer. Includible Compensation shall be determined without regard to any community property laws. For purposes of a Participant's Joinder Agreement only and not for purposes of the limitations in Article V, Includible Compensation shall include any employer contributions to an integral part trust of the employer providing retiree health care benefits. 2.13 Joinder Agreement. An agreement entered into between an Employee and the Employer, including any amendments or modifications thereof. Such agreement shall fix the amount of Deferred Compensation, specify a preference among the investment alternatives designated by the Employer, designate the Employee's Beneficiary or Beneficiaries, and incorporate the terms, conditions, and provisions of the Plan by reference. 2.14 Normal Limitation. The maximum amount of Deferred Compensation for any Participant for any taxable year (other than amounts referred to in Sections 6.09, 6. 10, and 6.11). 2.15 Normal Retirement Age. Age 70 -1/2, unless the Participant has elected an alternate Normal Retirement Age by written instrument delivered to the Administrator prior to a Severance Event. A Participant's Normal Retirement Age determines the period during which a Participant may utilize the 457 Catch -Up Dollar Limitation of Section 5.02(b) hereunder. Once a Participant has to any extent utilized the catch -up limitation of Section 5.02(b), his Normal Retirement Age may not be changed. A Participant's alternate Normal Retirement Age may not be earlier than the earliest date that the Participant will become eligible to retire and receive immediate, unreduced retirement benefits under the Employer's basic defined benefit retirement plan covering the Participant (or a money purchase pension plan in which the Participant also participates if the Participant is not eligible to participate in a defined benefit plan), and may not be later than the date the Participant will attain age 70 -1/2. If the Participant will not become eligible to receive benefits under a basic defined benefit retirement plan (or money purchase pension plan, if applicable) maintained by the Employer, the Participant's alternate Normal Retirement Age may not be earlier than 65 and may not be later than age 70 -1/2. In no event may a Participant's normal retirement age be different than the normal retirement age under the Employer's other 457(b) plans, if any. In the event the Plan has Participants that include qualified police or firefighters (as defined under Section 415(b)(2)(1-1)(ii)(I) of the Code), a normal retirement age may be designated for such qualified police or firefighters that is not earlier than age 40 or later than age 70 -1/2. Alternatively, qualified police or firefighters may be permitted to designate a normal retirement age that is between age 40 and age 70 -1/2. 2.16 Participant. Any Employee who has joined the Plan pursuant to the requirements of Article IV. For purposes of section 6.11 of the Plan, the term Participant includes an employee or former Employee of the Employer who has not yet received all of the payments of benefits to which he /she is entitled under the Plan. 2.17 Percentage Limitation. 100 percent of the participant's Includible Compensation available to be contributed as Deferred Compensation for the taxable year. 2.18 Plan Year. The calendar year. 2.19 Retirement. The first date upon which both of the following shall have occurred with respect to a participant: Severance Event and attainment of age 65. 2.20 Severance Event. A severance of the Participant's employment with the Employer within the meaning of Section 457(d)(1)(A)(ii) of the Code. In general, a Participant shall be deemed to have experienced a Severance Event for purposes of this Plan when, in accordance with the established practices of the Employer, the employment relationship is considered to have actually terminated. In the case of a Participant who is an independent contractor of the Employer, a Severance Event shall be deemed to have occurred when the Participant's contract under which services are performed has completely expired and terminated, there is no foreseeable possibility that the Employer will renew the contract or enter into a new contract for the Participant's services, and it is not anticipated that the Participant will become an Employee of the Employer, or such other events as may be permitted under the Code. 2.21 Trust. The Trust created under Article VI of the Plan which shall consist of all compensation deferred under the Plan, plus any income and gains thereon, less any losses, expenses and distributions to Participants and Beneficiaries. Article III. Administration 3.01 Duties of the Employer. The Employer shall have the authority to make all discretionary decisions affecting the rights or benefits of Participants which may be required in the administration of this Plan. The Employer's decisions shall be afforded the maximum deference permitted by applicable law. 3.02 Duties of Administrator. The Administrator, as agent for the Employer, shall perform nondiscretionary administrative functions in connection with the Plan, including the maintenance of Participants' Accounts, the provision of periodic reports of the status of each Account, and the disbursement of benefits on behalf of the Employer in accordance with the provisions of this Plan. Article IV. Participation in the Plan 4.01 Initial Participation. An Employee may become a Participant by entering into a Joinder Agreement prior to the beginning of the calendar month in which the Joinder Agreement is to become effective to defer compensation not yet earned, or such other date as may be permitted under the Code. A new employee may defer compensation in the calendar month during which he or she first becomes an employee if a Joinder Agreement is entered into on or before the first day on which the employee performs services for the Employer. 4.02 Amendment of Joinder Agreement. A Participant may amend an executed Joinder Agreement to change the amount of Includible Compensation not yet earned which is to be deferred (including the reduction of such future deferrals to zero). Such amendment shall become effective as of the beginning of the calendar month commencing after the date the amendment is executed, or such other date as may be permitted under the Code. A Participant may at any time amend his or her Joinder Agreement to change the designated Beneficiary, and such amendment shall become effective immediately. Article V Limitations on Deferrals 5.01 Normal Limitation. Except as provided in Section 5.02, the maximum amount of Deferred Compensation for any Participant for any taxable year, shall not exceed the lesser of the Dollar Limitation or the Percentage Limitation. 5.02 Catch -Up Limitations. (a) Catch -up Contributions for Participants Age 50 and Over A Participant who has attained the age of 50 before the close of the Plan Year, and with respect to whom no other elective deferrals may be made to the Plan for the Plan Year by reason of the Normal Limitation of Section 5.01, may enter into a Joinder Agreement to make elective deferrals in addition to those permitted by the Normal Limitation in an amount not to exceed the lesser of: (1) The applicable dollar amount as defined in Section 414(v)(2)(B) of the Code, as adjusted for the cost - of- living in accordance with Section 414(v)(2)(C) of the Code; or (2) The excess (if any) of (i) The Participant's Includible Compensation for the year, or (ii) Any other elective deferrals of the Participant for such year which are made without regard to this Section 5.02(a). An additional contribution made pursuant to this Section 5.02(a) shall not, with respect to the year in which the contribution is made, be subject to any otherwise applicable limitation contained in Section 5.01 above, or be taken into account in applying such limitation to other contributions or benefits under the Plan or any other plan. This Section 5.02(a) shall not apply in any year to which a higher limit under Section 5.02(b) applies. (b) Last Three Years Catch -up Contribution: For each of the last three (3) taxable years for a Participant ending before his or her attainment of Normal Retirement Age, the maximum amount of Deferred Compensation shall be the lesser of: (1) The 457 Catch -Up Dollar Limitation, or (2) The sum of (i) The Normal Limitation for the taxable year, and (ii) The Normal Limitation for each prior taxable year of the Participant commencing after 1978 less the amount of the Participant's Deferred Compensation for such prior taxable years. A prior taxable year shall be taken into account under the preceding sentence only if (x) the Participant was eligible to participate in the Plan for such year, and (y) compensation (if any) deferred under the Plan (or such other plan) was subject to the Normal Limitation. 5.03 Sick, Vacation and Back Pay. If the Employer so elects, a Participant may defer all or a portion of the value of the Participant's accumulated sick pay, accumulated vacation pay and /or back pay, provided that such deferral does not cause total deferrals on behalf of the Participant to exceed the Dollar Limitation or Percentage Limitation (including any Catch -up Dollar Limitation) for the year of deferral. The election to defer such sick, vacation and /or back pay must be made in a manner and at a time permitted under Section 1.457 -4(d) of the Income Tax Regulations. Pursuant to proposed IRS regulations issued under Section 415 of the Code, the Plan may permit deferrals from compensation, including sick, vacation and back pay, so long as the amounts are paid within 2 1/2 months following severance from employment and the other requirements of Sections 457(b) and 415 of the Code are met. Additionally, the agreement to defer such amounts must be entered into prior to the first day of the month in which the amounts otherwise would be paid or made available. 5.04 Other Plans. Notwithstanding any provision of the Plan to the contrary, the amount excludible from a Participant's gross income under this Plan or any other eligible deferred compensation plan under Section 457(b) of the Code shall not exceed the limits set forth in Sections 457(b) and 414(v) of the Code. 5.05 Excess Deferrals. Any amount that exceeds the maximum Dollar Limitation or Percentage Limitation (including any applicable Catch -Up Dollar Limitation) for a taxable year, shall constitute an excess deferral for that taxable year. Any excess deferral shall be distributed in accordance with the requirements for excess deferrals under the Code and Section 1.457 -4(e) of the Income Tax Regulations or other applicable Internal Revenue Service guidance. 5.06 Protection of Person Who Serves in a Uniformed Service. An Employee whose employment is interrupted by qualified military service under Section 414(u) of the Code or who is on leave of absence for qualified military service under Section 414(u) of the Code may elect to contribute additional Deferred Compensation upon resumption of employment with the Employer equal to the maximum Deferred Compensation that the Employee could have elected during that period if the Employee's employment with the Employer had continued (at the same level of Includible Compensation) without the interruption or leave, reduced by Deferred Compensation, if any, actually made for the Employee during the period of the interruption or leave. This right applies for five years following the resumption of employment (or, if sooner, for a period equal to three times the period of the interruption or leave). Article VI. Trust and Investment of Accounts 6.01 Investment of Deferred Compensation. A Trust is hereby created to hold all the assets of the Plan (except Deemed IRA contributions and earnings thereon held pursuant to Article IX) for the exclusive benefit of Participants and Beneficiaries, except that expenses and taxes may be paid from the Trust as provided in Section 6.03. The trustee shall be the Employer or such other person that agrees to act in that capacity hereunder. 6.02 Investment Powers. The trustee or the Administrator, acting as agent for the trustee, shall have the powers listed in this Section with respect to investment of Trust assets, except to the extent that the investment of Trust assets is directed by Participants, pursuant to Section 6.05 or to the extent that such powers are restricted by applicable law. (a) To invest and reinvest the Trust without distinction between principal and income in common or preferred stocks, shares of regulated investment companies and other mutual funds, bonds, loans, notes, debentures, certificates of deposit, contracts with insurance companies including but not limited to insurance, individual or group annuity, deposit administration, guaranteed interest contracts, and deposits at reasonable rates of interest at banking institutions including but not limited to savings accounts and certificates of deposit. Assets of the Trust may be invested in securities that involve a higher degree of risk than investments that have demonstrated their investment performance over an extended period of time. (b) To invest and reinvest all or any part of the assets of the Trust in any common, collective or commingled trust fund that is maintained by a bank or other institution and that is available to Employee plans described under Sections 457 or 401 of the Code, or any successor provisions thereto, and during the period of time that an investment through any such medium shall exist, to the extent of participation of the Plans the declaration of trust of such commonly collective, or commingled trust fund shall constitute a part of this Plan. (c) To invest and reinvest all or any part of the assets of the Trust in any group annuity, deposit administration or guaranteed interest contract issued by an insurance company or other financial institution on a commingled or collective basis with the assets of any other 457 plan or trust qualified under Section 401(a) of the Code or any other plan described in Section 401(a) (24) of the Code, and such contract may be held or issued in the name of the Administrator, or such custodian as the Administrator may appoint, as agent and nominee for the Employer. During the period that an investment through any such contract shall exist, to the extent of participation of the Plan, the terms and conditions of such contract shall constitute a part of the Plan. (d) To hold cash awaiting investment and to keep such portion of the Trust in cash or cash balances, without liability for interest, in such amounts as may from time to time be deemed to be reasonable and necessary to meet obligations under the Plan or otherwise to be in the best interests of the Plan. (e) To hold, to authorize the holding of, and to register any investment to the Trust in the name of the Plan, the Employer, or any nominee or agent of any of the foregoing, including the Administrator, or in bearer form, to deposit or arrange for the deposit of securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by any other person, and to organize corporations or trusts under the laws of any jurisdiction for the purpose of acquiring or holding title to any property for the Trust, all with or without the addition of words or other action to indicate that property is held in a fiduciary or representative capacity but the books and records of the Plan shall at all times show that all such investments are part of the Trust. (f) Upon such terms as may be deemed advisable by the Employer or the Administrator, as the case may be, for the protection of the interests of the Plan or for the preservation of the value of an investment, to exercise and enforce by suit for legal or equitable remedies or by other action, or to waive any right or claim on behalf of the Plan or any default in any obligation owing to the Plan, to renew, extend the time for payment of, agree to a reduction in the rate of interest on, or agree to any other modification or change in the terms of any obligation owing to the Plan, to settle, compromise, adjust, or submit to arbitration any claim or right in favor of or against the Plans to exercise and enforce any and all rights of foreclosure, bid for property in foreclosure, and take a deed in lieu of foreclosure with or without paying consideration therefor, to commence or defend suits or other legal proceedings whenever any interest of the Plan requires it, and to represent the Plan in all suits or legal proceedings in any court of law or equity or before any body or tribunal. (g) To employ suitable consultants, depositories, agents, and legal counsel on behalf of the Plan. (h) To open and maintain any bank account or accounts in the name of the Plan, the Employer, or any nominee or agent of the foregoing, including the Administrator, in any bank or banks. (i) To do any and all other acts that may be deemed necessary to carry out any of the powers set forth herein. 6.03 Tastes and Expenses. All taxes of any and all kinds whatsoever that may be levied or assessed under existing or future laws upon the Plan, or in respect to the Trust, or the income thereof, and all commissions or acquisitions or dispositions of securities and similar expenses of investment and reinvestment of the Trust, shall be paid from the Trust. Such reasonable compensation of the Administrator, as may be agreed upon from time to time by the Employer and the Administrator, and reimbursement for reasonable expenses incurred by the Administrator in performance of its duties hereunder (including but not limited to fees for legal, accounting, investment and custodial services) shall also be paid from the Trust. 6.04 Payment of Benefits. The payment of benefits from the Trust in accordance with the terms of the Plan may be made by the Administrator, or by any custodian or other person so authorized by the Employer to make such disbursement. The Administrator, custodian or other person shall not be liable with respect to any distribution of Trust assets made at the direction of the Employer. 6.05 Investment Funds. In accordance with uniform and nondiscriminatory rules established by the Employer and the Administrator, the Participant may direct his or her Accounts to be invested in one (1) or more investment funds available under the Plan; provided, however, that the Participant's investment directions shall not violate any investment restrictions established by the Employer. Neither the Employer, the Administrator, nor any other person shall be liable for any losses incurred by virtue of following such directions or with any reasonable administrative delay in implementing such directions. 6 6.06 Valuation of Accounts. As of each Accounting Date, the Plan assets held in each investment fund offered shall be valued at fair market value and the investment income and gains or losses for each fund shall be determined. Such investment income and gains or losses shall be allocated proportionately among all Account balances on a fund -by- fund basis. The allocation shall be in the proportion that each such Account balance as of the immediately preceding Accounting Date bears to the total of all such Account balances as of that Accounting Date. For purposes of this Article, all Account balances include the Account balances of all Participants and Beneficiaries. 6.07 Participant Loan Accounts. Participant loan accounts shall be invested in accordance with Section 8.03 of the Plan. Such Accounts shall not share in any investment income and gains or losses of the investment funds described in Sections 6.05 and 6.06. 6.08 Crediting of Accounts. The Participant's Account shall reflect the amount and value of the investments or other property obtained by the Employer through the investment of the Participant's Deferred Compensation pursuant to Sections 6.05 and 6.06. It is anticipated that the Employer's investments with respect to a Participant will conform to the investment preference specified in the Participant's Joinder Agreement, but nothing herein shall be construed to require the Employer to make any particular investment of a Participant's Deferred Compensation. Each Participant shall receive periodic reports, not less frequently than annually, showing the then current value of his or her Account. 6.09 Post - Severance Transfers Among Eligible Deferred Compensation Plans. (a) Incoming Transfers: A transfer may be accepted from an eligible deferred compensation plan maintained by another employer and credited to a Participant's or Beneficiary's Account under the Plan if: (1) In the case of a transfer for a Participant, the Participant has had a Severance Event with that employer and become an Employee of the Employer; (2) The other employer's plan provides that such transfer will be made; and (3) The Participant or Beneficiary whose deferred amounts are being transferred will have an amount immediately after the transfer at least equal to the deferred amount immediately before the transfer. The Employer may require such documentation from the predecessor plan as it deems necessary to effectuate the transfer in accordance with Section 457(e) (10) of the Code, to confirm that such plan is an eligible deferred compensation plan within the meaning of Section 457(b) of the Code, and to assure that transfers are provided for under such plan. The Employer may refuse to accept a transfer in the form of assets other than cash, unless the Employer and the Administrator agree to hold such other assets under the Plan. (b) Outgoing Transfers: An amount may be transferred to an eligible deferred compensation plan maintained by another employer, and charged to a Participant's or Beneficiary's Account under this Plan, if: (1) In the case of a transfer for a Participant, the Participant has a Severance Event with the Employer and becomes an employee of the other employer; (2) The other employer's plan provides that such transfer will be accepted; (3) The Participant or Beneficiary and the employers have signed such agreements as are necessary to assure that the Employer's liability to pay benefits to the Participant has been discharged and assumed by the other employer; and (4) The Participant or Beneficiary whose deferred amounts are being transferred will have an amount immediately after the transfer at least equal to the deferred amount immediately before the transfer. The Employer may require such documentation from the other plan as it deems necessary to effectuate the transfer, to confirm that such plan is an eligible deferred compensation plan within the meaning of Section 457(b) of the Code, and to assure that transfers are provided for under such plan. Such transfers shall be made only under such circumstances as are permitted under Section 457 of the Code and the regulations thereunder. 6.10 Transfers Among Eligible Deferred Compensation Plans of the Employer. (a) Incoming Transfers. A transfer may be accepted from another eligible deferred compensation plan maintained by the Employer and credited to a Participant's or Beneficiary's Account under the Plan if: (1) The Employer's other plan provides that such transfer will be made; (2) The Participant or Beneficiary whose deferred amounts are being transferred will have an amount immediately after the transfer at least equal to the deferred amount immediately before the transfer; and (3) The Participant or Beneficiary whose deferred amounts are being transferred is not eligible for additional annual deferrals in the Plan unless the Participant or Beneficiary is performing services for the Employer. (b) Outgoing Transfers. A transfer may be accepted from another eligible deferred compensation plan maintained by the Employer and credited to a Participant's or Beneficiary's Account under the Plan if: (1) The Employer's other plan provides that such transfer will be accepted; (2) The Participant or Beneficiary whose deferred amounts are being transferred will have an amount immediately after the transfer at least equal to the deferred amount immediately before the transfer; and (3) The Participant or Beneficiary whose deferred amounts are being transferred is not eligible for additional annual deferrals in the Employer's other eligible deferred compensation plan unless the Participant or Beneficiary is performing services for the Employer. 6.11 Eligible Rollover Distributions. (a) Incoming Rollovers: An eligible rollover distribution may be accepted from an eligible retirement plan and credited to a Participant's Account under the Plan. The Employer may require such documentation from the distributing plan as it deems necessary to effectuate the rollover in accordance with Section 402 of the Code and to confirm that such plan is an eligible retirement plan within the meaning of Section 402(c)(8)(B) of the Code. The Plan shall separately account (in one or more separate accounts) for eligible rollover distributions from any eligible retirement plan. (b) Outgoing Rollovers: Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee's election under this Section, a distributee may elect, at the time and in the manner prescribed by the Administrator, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. (c) Definitions: (1) Eligible Rollover Distribution: An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more; any distribution to the extent such distribution is required under Sections 401(a)(9) and 457(d) (2) of the Code; and any distribution made as a result of an unforeseeable emergency of the employee. For purposes of distributions from other eligible retirement plans rolled over into this Plan, the term eligible rollover distribution shall not include the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). (2) Eligible Retirement Plan: An eligible retirement plan is an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Sections 403(a) or 403(b) of the Code, a qualified trust described in Section 401(a) of the Code, or an eligible deferred compensation plan described in Section 457(b) of the Code which is maintained by an eligible governmental employer described in Section 457(e)(1)(A) of the Code, that accepts the distributee's eligible rollover distribution. (3) Distributee: A distributee includes an employee or former employee. In addition, the employee's or former employee's surviving spouse and the employee's or former employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code, are distributees with regard to the interest of the spouse or former spouse. (4) Direct Rollover. A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee. 6.12 Trustee -to- Trustee Transfers to Purchase Permissive Service Credit. All or a portion of a Participant's Account may be transferred directly to the trustee of a defined benefit governmental plan (as defined in Section 414(d) of the Code) if such transfer is (a) for the purchase of permissive service credit (as defined in Section 415(n)(3)(A) of the Code) under such plan, or (b) a repayment to which Section 415 of the Code does not apply by reason of subsection (k)(3) thereof, within the meaning of Section 457(e)(17) of the Code. 6.13 Treatment of Distributions of Amounts Previously Rolled Over From 401(a) and 403 (b) Plans and IRAs. For purposes of Section 72(t) of the Code, a distribution from this Plan shall be treated as a distribution from a qualified retirement plan described in Section 4974(c)(1) of the Code to the extent that such distribution is attributable to an amount transferred to an eligible deferred compensation plan from a qualified retirement plan (as defined in Section 4974(c) of the Code). 6.14 Employer Liability. In no event shall the Employer's liability to pay benefits to a Participant under this Plan exceed the value of the amounts credited to the Participant's Account; neither the Employer nor the Administrator shall be liable for losses arising from depreciation or shrinkage in the value of any investments acquired under this Plan. Article VII. Benefits 7.01 Retirement Benefits and Election on Severance Event. (a) General Rule: Except as otherwise provided in this Article VII, the distribution of a Participant's Account shall commence as of a Participant's Automatic Distribution Date, and the distribution of such benefits shall be made in accordance with one of the payment options described in Section 7.02. Notwithstanding the foregoing, but subject to the following paragraphs of this Section 7.0 1, the Participant may elect following a Severance Event to have the distribution of benefits commence on a fixed determinable date other than that described in the preceding sentence, but not later than April 1 of the year following the year of the Participant's Retirement or attainment of age 70 -1/2, whichever is later. The Participant's right to change his or her election with respect to commencement of the distribution of benefits shall not be restrained by this Section 7.01. Notwithstanding the foregoing, the Administrator, in order to ensure the orderly administration of this provision, may establish a deadline after which such election to defer the commencement of distribution of benefits shall not be allowed. (b) Loans: Notwithstanding the foregoing provisions of this Section 7.01, no election to defer the commencement of benefits after a Severance Event shall operate to defer the distribution of any amount in the Participant's loan account in the event of a default of the Participant's loan. 7.02 Payment Options. As provided in Sections 7.01, 7.04 and 7.05, a Participant may elect to have value of the Participant's Account distributed in accordance with one of the following payment options, provided that such option is consistent with the limitations set forth in Section 7.03: (a) Equal monthly, quarterly, semi - annual or annual payments in an amount chosen by the Participant, continuing until his or her Account is exhausted; (b) One lump -sum payment; (c) Approximately equal monthly, quarterly, semi - annual or annual payments, calculated to continue for a period certain chosen by the Participant; (d) Annual Payments equal to the minimum distributions required under Section 401(a)(9) of the Code, including the incidental death benefit requirements of Section 401 (a) (9) (G), over the life expectancy of the Participant or over the life expectancies of the Participant and his or her Beneficiary; (e) Payments equal to payments made by the issuer of a retirement annuity policy acquired by the Employer; (f) A split distribution under which payments under options (a), (b), (c) or (e) commence or are made at the same time, as elected by the Participant under Section 7.01, provided that all payments commence (or are made) by the latest benefit commencement date permitted under Section 7.01; (g) Any other payment option elected by the Participant and agreed to by the Employer and Administrator. A Participant's selection of a payment option under Subsections (a), (c), or (g) above may include the selection of an automatic annual cost -of living increase. Such increase will be based on the rise in the Consumer Price Index for All Urban Consumers (CPI -U) from the third quarter of the last year in which a cost -of- living increase was provided to the third quarter of the current year. Any increase will be made in periodic payment checks beginning the following January. 7.03 Limitation on Options. No payment option may be selected by a Participant under subsections 7.02(a) or (c) unless the amount of any installment is not less than $100. No payment option maybe selected by a Participant under Sections 7.02, 7.04, or 7.05 unless it satisfies the requirements of Sections 401(a)(9) and 457(d)(2) of the Code, including that payments commencing before the death of the Participant shall satisfy the incidental death benefit requirements under Section 401(a)(9)(G) of the Code. 7.04 Minimum Required Distributions. Notwithstanding any provision of the Plan to the contrary, the Plan shall comply with the minimum required distribution rules set forth in Sections 457(d)(2) and 401(a)(9) of the Code, including the incidental death benefit requirements of Section 401(a)(9)(G) of the Code. 7.05 Post - Retirement Death Benefits. (a) Should the Participant die after he or she has begun to receive benefits under a payment option, the remaining payments, if any, under the payment option shall continue until the Administrator receives notice of the Participant's death. Upon notification of the Participant's death, benefits shall be payable to the Participant's Beneficiary commencing not later than December 31 of the year following the year of the Participant's death, provided that the Beneficiary may elect to begin benefits earlier than that date. (b) In the event that the Beneficiary dies before the payment of death benefits has commenced or been completed, the remaining benefits payable under the payment option applicable to the Beneficiary shall, subject to the 10 requirements set forth in Section 7.04, be paid to an additional beneficiary designated by the Beneficiary. If no additional beneficiary is named, payment shall be made to the Beneficiary's estate in a lump sum. (c) In the event that the Participant's estate is the Beneficiary, payment shall be made to the estate in a lump sum. 7.06 Pre - Retirement Death Benefits. (a) Should the Participant die before he or she has begun to receive the benefits provided by Section 7.01, the value of the Participant's Account shall be payable to the Beneficiary commencing not later than December 31 of the year following the year of the Participant's death, provided that the Beneficiary may elect to begin benefits earlier than that date. (b) In the event that the Beneficiary dies before the payment of death benefits has commenced or been completed, the remaining value of the Participant's Account shall be paid to the estate of the Beneficiary in a lump sum. In the event that the Participant's estate is the Beneficiary, payment shall be made to the estate in a lump sum. 7.07 Unforeseeable Emergencies. (a) In the event an unforeseeable emergency occurs, a Participant or Beneficiary may apply to the Employer to receive that part of the value of his or her Account that is reasonably needed to satisfy the emergency need. If such an application is approved by the Employer, the Participant or Beneficiary shall be paid only such amount as the Employer deems necessary to meet the emergency need, but payment shall not be made to the extent that the financial hardship may be relieved through cessation of deferral under the Plan, insurance or other reimbursement, or liquidation of other assets to the extent such liquidation would not itself cause severe financial hardship. (b) An unforeseeable emergency shall be deemed to involve only circumstances of severe financial hardship of a Participant or Beneficiary resulting from an illness or accident of the participant or beneficiary, the Participant's or Beneficiary's spouse, or the Participant's or Beneficiary's dependent (as defined in Section 152 of the Code, and, for taxable years beginning on or after January 1, 2005, without regard to Sections 152(b)(1), (b)(2), and (d)(1)(B) of the Code); loss of the Participant's or Beneficiary's property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by homeowner's insurance, e.g., as a result of a natural disaster); or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant or the Beneficiary. For example, the imminent foreclosure of or eviction from the Participant's or Beneficiary's primary residence may constitute an unforeseeable emergency. In addition, the need to pay for medical expenses, including non- refundable deductibles, as well as for the cost of prescription drug medication, may constitute an unforeseeable emergency. Finally, the need to pay for the funeral expenses of a spouse or a dependent (as defined in section 152 of the Code, and, for taxable years beginning on or after January 1, 2005, without regard to Sections 152(b)(1), (b)(2), and (d)(1)(B) of the Code) may also constitute an unforeseeable emergency. Except as otherwise specifically provided in this Section 7.07(b), the purchase of a home and the payment of college tuition are not unforeseeable emergencies. 7.08 In- Service Distribution of Rollover Contributions. Effective January 1, 2006, the Employer may elect to allow Participants to receive an in- service distribution of amounts attributable to rollover contributions to the Plan. If the Employer has elected to make such distributions available, a Participant that has a separate account attributable to rollover contributions to the Plan, may at any time request a distribution of all or any portion of the amount attributable to his or her rollover contribution. 11 7.09 In- Service Distribution to Participants Age 70 -1/2 or Older. A Participant who has reached age 70 lh and has not yet had a Severance Event, may, at any time, request a distribution of all or a part of his or her Account. A Participant may only receive two (2) such distributions pursuant to this Section 7.09 in any calendar year. 7.10 Distribution De Minimis Accounts. Notwithstanding the foregoing provisions of this Article VII: (a) Mandatory Distribution. If the value of a Participant's Account is less than $1,000, the Participant's Account shall be paid to the Participant in a single lump sum distribution, provided that: (1) No amount has been deferred under the Plan with respect to the Participant during the 2 -year period ending on the date of the distribution; and (2) There has been no prior distribution under the Plan to the Participant pursuant to this Section 7.10. (b) Voluntary Distribution. If the value of the Participant's Account is at least $1,000 but not more than the dollar limit under Section 411(a)(11)(A) of the Code, the Participant may elect to receive his or her entire Account in a lump sum payment if: (1) No amount has been deferred under the Plan with respect to the Participant during the 2 -year period ending on the date of the distribution; and (2) There has been no prior distribution under the Plan to the Participant pursuant to this Section 7.10. Article VIII. Loans to Participants 8.01 Availability of Loans to Participants. (a) The Employer may elect to make loans available to Participants in this Plan. If the Employer has elected to make loans available to Participants, a Participant may apply for a loan from the Plan subject to the limitations and other provisions of this Article. However, no loans are available from Deemed IRAs. (b) The Employer shall establish written guidelines governing the granting of loans, provided that such guidelines are approved by the Administrator and are not inconsistent with the provisions of this Article, and that loans are made available to all Participants on a reasonably equivalent basis. 8.02 Terms and Conditions of Loans to Participants. Any loan by the Plan to a Participant under Section 8.01 of the Plan shall satisfy the following requirements: (a) Availability. Loans shall be made available to all Participants on a reasonably equivalent basis. (b) Interest Rate. Loans must be adequately secured and bear a reasonable interest rate. (c) Loan Limit. No Participant loan shall exceed the present value of the Participant's Account. (d) Foreclosure. In the event of default on any installment payment, the outstanding balance of the loan shall be a deemed distribution. In such event, an actual distribution of a plan loan offset amount will not occur until a distributable event occurs in the Plan. (e) Reduction ofAccount. Notwithstanding any other provision of this Plan, the portion of the Participant's Account balance used as a security interest held by the Plan by reason of a loan outstanding to the Participant shall be taken into account for purposes of determining the amount of the Account balance payable at the time of death or distribution, but only if the reduction is used as repayment of the loan. 12 (f) Amount of Loan. At the time the loan is made, the principal amount of the loan plus the outstanding balance (principal plus accrued interest) due on any other outstanding loans to the Participant from the Plan and from all other plans of the Employer that are either eligible deferred compensation plans described in section 457(b) of the Code or qualified employer plans under Section 72(p)(4) of the Code shall not exceed the lesser of: (1) $50,000, reduced by the excess (if any) of (i) The highest outstanding balance of loans from the Plan during the one (1) year period ending on the day before the date on which the loan is made; or (ii) The outstanding balance of loans from the Plan on the date on which such loan is made; or (2) One -half of the value of the Participant's interest in all of his or her Accounts under this Plan. (g) Application for Loan. The Participant must give the Employer adequate written notice, as determined by the Employer, of the amount and desired time for receiving a loan. No more than one (1) loan may be made by the Plan to a Participant's in any calendar year. No loan shall be approved if an existing loan from the Plan to the Participant is in default to any extent. (h) Length of Loan. Any loan issued shall require the Participant to repay the loan in substantially equal installments of principal and interest, at least monthly, over a period that does not exceed five (5) years from the date of the loan; provided, however, that if the proceeds of the loan are applied by the Participant to acquire any dwelling unit that is to be used within a reasonable time (determined at the time of the loan is made) after the loan is made as the principal residence of the Participant, the five (5) year limit shall not apply. In this event, the period of repayment shall not exceed a reasonable period determined by the Employer. Principal installments and interest payments otherwise due may be suspended for up to one (1) year during an authorized leave of absence, if the promissory note so provides, but not beyond the original term permitted under this subsection (h), with a revised payment schedule (within such term) instituted at the end of such period of suspension. (i) Prepayment. The Participant shall be permitted to repay the loan in whole or in part at any time prior to maturity, without penalty. (j) Promissory Note. The loan shall be evidenced by a promissory note executed by the Participant and delivered to the Employer, and shall bear interest at a reasonable rate determined by the Employer. (k) Security. The loan shall be secured by an assignment of the participant's right, title and interest in and to his or her Account. (1) Assignment or Pledge. For the purposes of paragraphs (f) and (g), assignment or pledge of any portion of the Participant's interest in the Plan and a loan, pledge, or assignment with respect to any insurance contract purchased under the Plan, will be treated as a loan. (m) Other Terms and Conditions. The Employer shall fix such other terms and conditions of the loan as it deems necessary to comply with legal requirements, to maintain the qualification of the Plan and Trust under Section 457 of the Code, or to prevent the treatment of the loan for tax purposes as a distribution to the Participant. The Employer, in its discretion for any reason, may also fix other terms and conditions of the loan, including, but not limited to, the provision of grace periods following an event of default, not inconsistent with the provisions of this Article and Section 72(p) of the Code, and any applicable regulations thereunder. 13 8.03 Participant Loan Accounts. (a) Upon approval of a loan to a Participant by the Employer, an amount not in excess of the loan shall be transferred from the Participant's other investment fund(s), described in Section 6.05 of the Plan, to the Participant's loan account as of the Accounting Date immediately preceding the agreed upon date on which the loan is to be made. (b) The assets of a Participant's loan account may be invested and reinvested only in promissory notes received by the Plan from the Participant as consideration for a loan permitted by Section 8.01 of the Plan or in cash. Uninvested cash balances in a Participant's loan account shall not bear interest. Neither the Employer, the Administrator, nor any other person shall be liable for any loss, or by reason of any breach, that results from the Participant's exercise of such control. (c) Repayment of principal and payment of interest shall be made by payroll deduction or, where repayment cannot be made by payroll deduction, by check, and shall be invested in one (1) or more other investment funds, in accordance with Section 6.05 of the Plan, as of the next Accounting Date after payment thereof to the Trust. The amount so invested shall be deducted from the Participant's loan account. (d) The Employer shall have the authority to establish other reasonable rules, not inconsistent with the provisions of the Plan, governing the establishment and maintenance of Participant loan accounts. Article IX. Deemed IRAs 9.01 General. This Article IX of the Plan reflects section 602 of the Economic Growth and Tax Relief Reconciliation Act of 2001 ( "EGTRRA "), as amended by the Job Creation and Worker Assistance Act of 2002. This Article is intended as good faith compliance with the requirements of EGTRRA and is to be construed in accordance with EGTRRA and guidance issued thereunder. This Article IX shall supersede the provisions of the Plan to the extent that those provisions are inconsistent with the provisions of this Article IX. Effective for Plan Years beginning after December 31, 2002, the Employer may elect to allow Employees to make voluntary employee contributions to a separate account or annuity established under the Plan that complies with the requirements of Section 408(q) of the Code and any regulations promulgated thereunder (a "Deemed IRA "). The Plan shall establish a separate account for the designated Deemed IRA contributions of each Employee and any earnings properly allocable to the contributions, and maintain separate recordkeeping with respect to each such Deemed IRA. 9.02 Voluntary Employee Contributions. For purposes of this Article, a voluntary employee contribution means any contribution (other than a mandatory contribution within the meaning of Section 411(c) (2) of the Code) that is made by the Employee and which the Employee has designated, at or prior to the time of making the contribution, as a contribution to which this Article applies. 9.03 Deemed IRA Trust Requirements. This Article shall satisfy the trust requirement under Section 408(q) of the Code and the regulations thereto. IRAs established pursuant to this Article shall be held in one or more trusts or custodial accounts (the "Deemed IRA Trusts "), which shall be separate from the Trust established under the Plan to hold contributions other than Deemed IRA contributions. The Deemed IRA Trusts shall satisfy the applicable requirements of Sections 408 and 408A of the Code, which requirements are set forth in section 9.05 and 9.06, respectively, and shall be established with a trustee or custodian meeting the requirements of Section 408(a)(2) of the Code ( "Deemed IRA Trustee "). To the extent that the assets of any Deemed IRAs established pursuant to this Article are held in a Deemed IRA Trust satisfying the requirements of this Section 9.03, such Deemed IRA Trust, and any amendments thereto, is hereby adopted as a trust maintained under this Plan with respect to the assets held therein, and the provisions of such Deemed IRA Trust shall control so long as any assets of any Deemed IRA are held thereunder. 14 9.04 Reporting Duties. The Deemed IRA Trustee shall be subject to the reporting requirements of Section 408(i) of the Code with respect to all Deemed IRAs that are established and maintained under the Plan. 9.05 Deemed Traditional IRA Requirements. Deemed IRAs established in the form of traditional IRAs shall satisfy the following requirements: (a) Exclusive Benefit. The Deemed IRA account shall be established for the exclusive benefit of an Employee or his or her Beneficiaries. (b) Maximum Annual Contributions. (1) Except in the case of a rollover contribution (as permitted by Sections 402(c), 402(e)(6), 403(a)(4), 403(b)(8), 403(b)(10), 408(d)(3) and 457(e)(16) of the Code), no contributions will be accepted unless they are in cash, and the total of such contributions shall not exceed: $3,000 for any taxable year beginning in 2002 through 2004; $4,000 for any taxable year beginning in 2005 through 2007; and $5,000 for any taxable year beginning in 2008 and years thereafter. After 2008, the limit will be adjusted by the Secretary of the Treasury for cost -of- living- increases under Section 219(b)(5)(C) of the Code. Such adjustments will be in multiples of $500. (2) In the case of an Employee who is 50 or older, the annual cash contribution limit is increased by: $500 for any taxable year beginning in 2002 through 2005; and $1,000 for any taxable year beginning in 2006 and thereafter. (3) No contributions will be accepted under a SIMPLE IRA plan established by any employer pursuant to Section 408(p) of the Code. Also, no transfer or rollover of funds attributable to contributions made by a particular employer under its SIMPLE IRA plan will be accepted from a SIMPLE IRA, that is an IRA used in conjunction with a SIMPLE IRA plan, prior to the expiration of the 2 -year period beginning on the date the Employee first participated in that employer's SIMPLE IRA plan. (c) Collectibles. If the Deemed IRA Trust acquires collectibles with within the meaning of Section 408(m) of the Code after December 31, 1981, Deemed IRA Trust assets will be treated as a distribution in an amount equal to the cost of such collectibles. (d) Life Insurance Contracts. No part of the Deemed IRA Trust funds will be invested in life insurance contracts. (e) Minimum Required Distributions. (1) Notwithstanding any provision of this Deemed IRA to the contrary, the distribution of the Employee's interest in the account shall be made in accordance with the requirements of Section 408(a)(6) of the Code and the Income Tax Regulations thereunder, the provisions of which are herein incorporated by reference. If distributions are made from an annuity contract purchased from an insurance company, distributions thereunder must satisfy the requirements of Q&-A-4 of Section 1.401(a) (9) -6T of the Income Tax Regulations (or Section 1.401(a) (9) -6 of the Income Tax Regulations, as applicable), rather than paragraphs (2), (3) and (4) below and Section 9.05(f). The minimum required distributions calculated for this IRA may be withdrawn from another IRA of the Employee in accordance with Q&A -9 of Section 1.408 -8 of the Income Tax Regulations. (2) The entire value of the account of the Employee for whose benefit the account is maintained will commence to be distributed no later than the first day of April following the calendar year in which 15 such Employee attains age 70-1/2 (the "required beginning date ") over the life of such Employee or the lives of such Employee and his or her Beneficiary. (3) The amount to be distributed each year, beginning with the calendar year in which the Employee attains age 70 -1/2 and continuing through the year of death shall not be less than the quotient obtained by dividing the value of the IRA (as determined under section 9.05(f)(3)) as of the end of the preceding year by the distribution period in the Uniform Lifetime Table in Q&A -2 of Section 401(a)(9) -9 of the Income Tax Regulations, using the Employee's age of his or her birthday in the year. However, if the Employee's sole Beneficiary is his or her surviving spouse and such spouse is more than 10 years younger than the Employee, then the distribution period is determined under the Joint and Last Survivor Table in Q&A -3 of Section 1.401(a)(9) -9 of the Income Tax Regulations, using the ages as of the Employee's and spouse's birthdays in the year. (4) The required minimum distribution for the year the Employee attains age 70 -1/2 can be made as late as April 1 of the following year. The required minimum distribution for any other year must be made by the end of such year. (f) Distribution Upon Death. (1) Death On or After Required Beginning Date. If the Employee dies on or after the required beginning date, the remaining portion of his or her interest will be distributed at least as rapidly as follows: (i) If the Beneficiary is someone other than the Employee's surviving spouse, the remaining interest will be distributed over the remaining life expectancy of the Beneficiary, with such life expectancy determined using the Beneficiary's age as of his or her birthday in the year following the year of the Employee's death, or over the period described in paragraph (1)(iii) below if longer. (ii) If the Employee's sole Beneficiary is the Employee's surviving spouse, the remaining interest will be distributed over such spouse's life or over the period described in paragraph (1)(iii) below if longer. Any interest remaining after such spouse's death will be distributed over such spouse's remaining life expectancy determined using the spouse's age as of his or her birthday in the year of the spouse's death, or, if the distributions are being made over the period described in paragraph (1) (iii) below, over such period. (iii) If there is no Beneficiary, or if applicable by operation of paragraph (1) (i) or (1) (ii) above, the remaining interest will be distributed over the Employee's remaining life expectancy determined in the year of the Employee's death. (iv) The amount to be distributed each year under paragraph (1)(i), (ii), or (iii), beginning with the calendar year following the calendar year of the Employee's death, is the quotient obtained by dividing the value of the IRA as of the end of the preceding year by the remaining life expectancy specified in such paragraph. Life expectancy is determined using the Single Life Table in Q&A -1 of Section 1.401(a)(9) -9 of the Income Tax Regulations. If distributions are being made to a surviving spouse as the sole Beneficiary, such spouse's remaining life expectancy for a year is the number in the Single Life Table corresponding to such spouse's age in the year. In all other cases, remaining life expectancy for a year is the number in the Single Life Table corresponding to the Beneficiary's or Employee's age in the year specified in paragraph 1(i), (ii), or (iii) and reduced by 1 for each subsequent year. (2) Death Before Required Beginning Date. If the Employee dies before the required beginning date, his or her entire interest will be distributed at least as rapidly as follows: (i) If the Beneficiary is someone other than the Employee's surviving spouse, the entire interest will be distributed, starting by the end of the calendar year following the calendar year of 16 the Employee's death, over the remaining life expectancy of the Beneficiary, with such life expectancy determined using the age of the Beneficiary as of his or her birthday in the year following the year of the Employee's death, or, if elected, in accordance with paragraph (2)(iii) below. (ii) If the Employee's sole Beneficiary is the Employee's surviving spouse, the entire interest will be distributed, starting by the end of the calendar year following the calendar year of the Employee's death (or by the end of the calendar year in which the Employee would have attained age 70 -1/2, if later), over such spouse's life, or, if elected, in accordance with paragraph (2)(iii) below. If the surviving spouse dies before distributions are required to begin, the remaining interest will be distributed, starting by the end of the calendar year following the calendar year of the spouse's death, over the spouse's Beneficiary's remaining life expectancy determined using such Beneficiary's age as of his or her birthday in the year following the death of the spouse, or, if elected, will be distributed in accordance with paragraph (2)(iii) below. If the surviving spouse dies after distributions are required to begin, any remaining interest will be distributed over the spouse's remaining life expectancy determined using the spouse's age as of his or her birthday in the year of the spouse's death. (iii) If there is no Beneficiary, or if applicable by operation of paragraph (2)(i) or (2)(ii) above, the entire interest will be distributed by the end of the calendar year containing the fifth anniversary of the Beneficiary's death (or of the spouse's death in the case of the surviving spouse's death before distributions are required to begin under paragraph (2)(ii) above). (iv) The amount to be distributed each year under paragraph (2)(i) or (ii) is the quotient to be obtained by dividing the value of the IRA as of the end of the preceding year by the remaining life expectancy specified in such paragraph. Life expectancy is determined using the Single Life Table in Q8cA -1 of Section 1.401 WOO of the Income Tax Regulations. If distributions are being made to a surviving spouse as the sole Beneficiary, such spouse's remaining life expectancy for a year is the number in the Single Life Table corresponding to the Beneficiary's age in the year specified in paragraph (2)(i) or (ii) and reduced by 1 for each subsequent year. (v) The "value" of the IRA includes the amount of any outstanding rollover, transfer and recharacterization under Q&As -7 and -8 of Section 1.408 -8 of the Income Tax Regulations. (vi) If the sole Beneficiary is the Employee's surviving spouse, the spouse may elect to treat the IRA as his or her own IRA. This election will be deemed to have been made if such surviving spouse makes a contribution to the IRA or fails to take required distributions as a Beneficiary. (g) Nonforfeitable. The interest of an Employee in the balance in his or her Deemed IRA account is nonforfeitable at all times. (h) Reporting. The Deemed IRA Trustee of a Deemed Traditional IRA shall furnish annual calendar -year reports concerning the status of the Deemed IRA account and such information concerning required minimum distributions as is prescribed by the Commissioner of Internal Revenue. (i) Substitution of Deemed IRA Trustee. If the Deemed IRA Trustee is a non -bank trustee or custodian, the non - bank trustee or custodian shall substitute another trustee or custodian if the non -bank trustee or custodian receives notice from the Commissioner of Internal Revenue that such substitution is required because it has failed to comply with the requirements of Section 1.408 -2(e) of the Income Tax Regulations and Section 1.408 -2T of the Income Tax Regulations 17 9.06 Deemed Roth IRA Requirements. Deemed IRAs established in the form of Roth IRAs shall satisfy the following requirements: (a) Exclusive Benefit. The Deemed Roth IRA shall be established for the exclusive benefit of an Employee or his or her Beneficiaries. (b) Maximum Annual Contributions. (1) Maximum Permissible Amount. Except in the case of a qualified rollover contribution or recharacterization (as defined in (6) below), no contribution will be accepted unless it is in cash and the total of such contributions to all the Employee's Roth IRAs for a taxable year does not exceed the applicable amount (as defined in (2) below), or the Employee's compensation (as defined in (8) below) if less, for that taxable year. The contribution described in the previous sentence that may not exceed the lesser of the applicable amount or the Employee's compensation is referred to as a "regular contribution." A "qualified rollover contribution" is a rollover contribution that meets the requirements of Section 408(d)(3) of the Code, except the one - rollover - per -year rule of Section 408(d)(3)(B) does not apply if the rollover contribution is from another IRA other than a Roth IRA (a "nonRoth IRA "). Contributions may be limited under (3) through (5) below. (2) Applicable Amount. The applicable amount is determined under (i) or (ii) below: (i) If the Employee is under age 50, the applicable amount is: $3,000 for any taxable year beginning in 2002 through 2004; $4,000 for any taxable year beginning in 2005 through 2007; and $5,000 for any taxable year beginning in 2008 and years thereafter. (ii) If the Employee is 50 or older, the applicable amount is: $3,500 for any taxable year beginning in 2002 through 2004; $4,500 for any taxable year beginning in 2005; $5,000 for any taxable year beginning in 2006 through 2007; and $6,000 for any taxable year beginning in 2008 and years thereafter. After 2008, the limits in paragraph (2)(i) and (ii) above will be adjusted by the Secretary of the Treasury for cost -of- living increases under Section 219(b)(5)(C) of the Code. Such adjustments will be in multiples of $500. (3) If (i) and /or (ii) below apply, the maximum regular contribution that can be made to all the Employee's Roth IRAs for the taxable year is the smaller amount determined under (i) or (ii). 18 (i) The maximum regular contribution is phased out ratably between certain levels of modified adjusted gross income ( "modified AGI," defined in (7) below) in accordance with the following table: Modified AGI Filing Status Full Phase -out No Contribution Range Contribution Single or Head $95,000 or less Between $95,000 $110,000 of Household and $110,000 or more Joint Return or Qualifying $150,000 or less Between $150,000 $160,000 and $160,000 or more Widower Married- $0 Between $0 $10,000 Separate Return and $10,000 or more If the Employee's modified AGI for a taxable year is in the phase -out range, the maximum regular contribution determined under this table for that taxable year is rounded up to the next multiple of $10 and not reduced below $200. (ii) If the Employee makes regular contributions to both Roth and nonRoth IRAs for a taxable year, the maximum regular contribution that can be made to all the Employee's Roth IRAs for that taxable year is reduced by the regular contributions made to the Employee's nonRoth IRAs for the taxable year. (4) Qualified Rollover Contribution Limit. A rollover from a nonRoth IRA cannot be made to this IRA if, for the year the amount is distributed from the nonRoth IRA,(i) the Employee is married and files a separate return, (ii) the Employee is not married and has modified AGI in excess of $100,000 or (iii) the Employee is married and together the Employee and the Employee's spouse have modified AGI in excess of $100,000. For purposes of the preceding sentence, a husband and wife are not treated as married for a taxable year if they have lived apart at all times during that taxable year and file separate returns for the taxable year. (5) SIMPLE IRA Limits. No contributions will be accepted under a SIMPLE IRA plan established by any employer pursuant to Section 408(p) of the Code. Also, no transfer or rollover of funds attributable to contributions made by a particular employer under its SIMPLE IRA plan will be accepted from a SIMPLE IRA, that is, an IRA used in conjunction with a SIMPLE IRA plan, prior to the expiration of the 2 -year period beginning on the date the Employee first participated in that employer's SIMPLE IRA plan. (6) Recharacterization. A regular contribution to a nonRoth IRA may be recharacterized pursuant to the rules in Section 1.408A -5 of the Income Tax Regulations as a regular contribution to this IRA, subject to the limits in (3) above. (7) ModifiedAGI. For purposes of (3) and (4) above, an Employee's modified AGI for a taxable year is defined in Section 408A(c)(3)(C)(i) of the Code and does not include any amount included in adjusted gross income as a result of a rollover from a nonRoth IRA (a "conversion "). (8) Compensation. For purposes of (1) above, compensation is defined as wages, salaries, professional fees, or other amounts derived from or received for personal services actually rendered (including, but not limited to, commissions paid salesmen, compensation for services on the basis of a percentage of profits, commissions on insurance premiums, tips and bonuses) and includes earned income, as defined in Section 401(c)(2) of the Code (reduced by the deduction the self - employed individual 19 takes for contributions made to a self - employed retirement plan). For purposes of this definition, Section 401(c)(2) of the Code shall be applied as if the term trade or business for purposes of Section 1402 of the Code included service described in subsection (c)(6). Compensation does not include amounts derived from or received as earnings or profits from property (including but not limited to interest and dividends) or amounts not includible in gross income. Compensation also does not include any amount received as a pension or annuity or as deferred compensation. The term "compensation" shall include any amount includible in the Employee's gross income under Section 71 of the Code with respect to a divorce or separation instrument described in subparagraph (A) of Section 71(b)(2) of the Code In the case of a married Employee filing a joint return, the greater compensation of his or her spouse is treated as his or her own compensation but only to the extent that such spouse's compensation is not being used for purposes of the spouse making a contribution to a Roth IRA or a deductible contribution to a nonRoth IRA. (c) Collectibles. If the Deemed IRA Trust acquires collectibles within the meaning of Section 408(m) of the Code after December 31, 1981, Deemed IRA Trust assets will be treated as a distribution in an amount equal to the cost of such collectibles. (d) Life Insurance Contracts. No part of the Deemed IRA Trust funds will be invested in life insurance contracts. (e) Distributions Before Death. No amount is required to be distributed prior to the death of the Employee for whose benefit the account was originally established. (f) Minimum Required Distributions. (1) Notwithstanding any provision of this IRA to the contrary, the distribution of the Employee's interest in the account shall be made in accordance with the requirements of Section 408(a)(6) of the Code, as modified by section 408A(c)(5), and the regulations thereunder, the provisions of which are herein incorporated by reference. If distributions are made from an annuity contract purchased from an insurance company, distributions thereunder must satisfy the requirements of section 1.401(a)(9) -6T of the Temporary Income Tax Regulations (taking into account Section 408A(c)(5) of the Code) (or Section 1.401(a) (9) -6 of the Income Tax Regulations, as applicable), rather than the distribution rules in paragraphs (2), (3) and (4) below. (2) Upon the death of the Employee, his or her entire interest will be distributed at least as rapidly as follows: (i) If the Beneficiary is someone other than the Employee's surviving spouse, the entire interest will be distributed, starting by the end of the calendar year following the year of the Employee's death, over the remaining life expectancy of the Beneficiary, with such life expectancy determined using the age of the beneficiary as of his or her birthday in the year following the year of the Employee's death, or, if elected, in accordance with paragraph (2)(iii) below. (ii) If the Employee's sole Beneficiary is the Employee's surviving spouse, the entire interest will be distributed starting by the end of the calendar year following the calendar year of the Employee's death (or by the end of the calendar year in which the Employee would have attained age 70 -1/2, if later), over such spouse's life, or, if elected, in accordance with paragraph (2)(iii) below. If the surviving spouse dies before distributions are required to begin, the remaining interest will be distributed, starting by the end of the calendar year following the calendar year of the spouse's death, over the spouse's Beneficiary's remaining life expectancy determined using such Beneficiary's age as of his or her birthday in the year following the death of the spouse, or, if elected, will be distributed in accordance with paragraph (2)(iii) below. If the surviving spouse dies after distributions are required to begin, any remaining interest will be distributed over the spouse's remaining life expectancy determined using the spouse's age as of his or her birthday in the year of the spouse's death. 20 (iii) If there is no Beneficiary, or if applicable by operation of paragraph (2)(i) or (2)(ii) above, the entire interest will be distributed the end of the calendar year containing the fifth anniversary of the Employee's death (or of the spouse's death in the case of the surviving spouse's death before distributions are required to begin under paragraph 2(ii) above). (iv) The amount to be distributed each year under paragraph (2)(i) or (ii) is the quotient obtained by dividing the value of the IRA as of the end of the preceding year by the remaining life expectancy specified in such paragraph. Life expectancy is determined using the Single Life Table in Q&A -1 of Section 1.401(a) (9) -9 of the Income Tax Regulations. If distributions are being made to a surviving spouse as the sole Beneficiary, such spouse's remaining life expectancy for a year is the number in the Single Life Table corresponding to such spouse's age in the year. In all other cases, remaining life expectancy for a year is the number in the Single Life Table corresponding to the Beneficiary's age in the year specified in paragraph (2)(i) or (ii) and reduced by 1 for each subsequent year. (3) The "value" of the IRA includes the amount of any outstanding rollover, transfer and recharacterization under Q&-As-7 and -8 of Section 1.408 -8 of the Income Tax Regulations. (4) If the sole Beneficiary is the Employee's surviving spouse, the spouse may elect to treat the IRA as his or her own IRA. This election will be deemed to have been made if such surviving spouse makes a contribution to the IRA or fails to take required distributions as a Beneficiary. (g) Nonforfeitable. The interest of an Employee in the balance in his or her account is nonforfeitable at all times. (h) Reporting. The Deemed IRA Trustee of a Deemed Roth IRA shall furnish annual calendar -year reports concerning the status of the Deemed IRA account and such information concerning required minimum distributions as is prescribed by the Commissioner of Internal Revenue. (i) Substitution of Deemed IRA Trustee. If the Deemed IRA Trustee is a non -bank trustee or custodian, the non - bank trustee or custodian shall substitute another trustee or custodian if the non -bank trustee or custodian receives notice from the Commissioner of Internal Revenue that such substitution is required because it has failed to comply with the requirements of Section 1.408 -2(e) of the Income Tax Regulations and Section 1.408 -2T of the Income Tax Regulations. Article X. Non - Assignability 10.01 General. Except as provided in Article VIII and Section 10.02, no Participant or Beneficiary shall have any right to commute, sell, assign, pledge, transfer or otherwise convey or encumber the right to receive any payments hereunder, which payments and rights are expressly declared to be non - assignable and non - transferable. 10.02 Domestic Relations Orders. (a) Allowance of Transfers: To the extent required under a final judgment, decree, or order (including approval of a property settlement agreement) that (1) relates to the provision of child support, alimony payments, or marital property rights and (2) is made pursuant to a state domestic relations law, and (3) is permitted under Sections 414(p) (11) and (12) of the Code, any portion of a Participant's Account may be paid or set aside for payment to a spouse, former spouse, child, or other dependent of the Participant (an "Alternate Payee "). Where necessary to carry out the terms of such an order, a separate Account shall be established with respect to the Alternate Payee who shall be entitled to make investment selections with respect thereto in the same manner as the Participant. Any amount so set aside for an Alternate Payee shall be paid in accordance with the form and timing of payment specified in the order. Nothing in this Section shall be construed to authorize any amount to be distributed under the Plan at a time or in a form that is not permitted under Section 457(b) of 21 the Code and is explicitly permitted under the uniform procedures described in Section 10.2(d) below. Any payment made to a person pursuant to this Section shall be reduced by any required income tax withholding. (b) Release from Liability to Participant The Employer's liability to pay benefits to a Participant shall be reduced to the extent that amounts have been paid or set aside for payment to an Alternate Payee to paragraph (a) of this Section and the Participant and his or her Beneficiaries shall be deemed to have released the Employer and the Plan Administrator from any claim with respect to such amounts. (c) Participation in Legal Proceedings: The Employer and Administrator shall not be obligated to defend against or set aside any judgment, decree, or order described in paragraph (a) or any legal order relating to the garnishment of a Participant's benefits, unless the full expense of such legal action is borne by the Participant. In the event that the Participant's action (or inaction) nonetheless causes the Employer or Administrator to incur such expense, the amount of the expense may be charged against the Participant's Account and thereby reduce the Employer's obligation to pay benefits to the Participant. In the course of any proceeding relating to divorce, separation, or child support, the Employer and Administrator shall be authorized to disclose information relating to the Participant's Account to the Alternate Payee (including the legal representatives of the Alternate Payee), or to a court. (d) Determination of Validity of Domestic Relations Orders: The Administrator shall establish uniform procedures for determining the validity of any domestic relations order. The Administrator's determinations under such procedures shall be conclusive and binding on all parties and shall be afforded the maximum amount of deference permitted by law. 10.03 IRS Levy. Notwithstanding Section 10.01, the Administrator may pay from a Participant's or Beneficiary's Account balance the amount that the Administrator finds is lawfully demanded under a levy issued by the Internal Revenue Service with respect to that Participant or Beneficiary or is sought to be collected by the United States Government under a judgment resulting from an unpaid tax assessment against the Participant or Beneficiary. 10.04 Mistaken Contribution. To the extent permitted by applicable law, if any contribution (or any portion of a contribution) is made to the Plan by a good faith mistake of fact, then after the payment of the contribution, and upon receipt in good order of a proper request approved by the Administrator, the amount of the mistaken contribution (adjusted for any income or loss in value, if any, allocable thereto) shall be returned directly to the Participant or, to the extent required or permitted by the Administrator, to the Employer. 10.05 Payments to Minors and Incompetents. If a Participant or Beneficiary entitled to receive any benefits hereunder is a minor or is adjudged to be legally incapable if giving valid receipt and discharge for such benefits, or is deemed so by the Administrator, benefits will be paid to such persons as the Administrator may designate for the benefit of such Participant or Beneficiary. Such payments shall be considered a payment to such Participant or Beneficiary and shall, to the extent made, be deemed a complete discharge of any liability for such payments under the Plan. 10.06 Procedure When Distributee Cannot Be Located. The Administrator shall make all reasonable attempts to determine the identity and address of a Participant or a Participant's Beneficiary entitled to benefits under the Plan. For this purpose, a reasonable attempt means (a) the mailing by certified mail of a notice to the last known address shown on the Employer or Administrator's records, (b) notification sent to the Social Security Administration or the Pension Benefit Guarantee Corporation (under their program to identify payees under retirement plans), and (c) the payee has not responded within 6 months. If the Administrator is unable to locate such a person entitled to benefits hereunder, or if there has been no claim made for such benefits, the Trust shall continue to hold the benefits due such person. Article XI. R elationship to Other Plans and Employment Agreements This Plan serves in addition to any other retirement, pension, or benefit plan or system presently in existence or hereinafter established for the benefit of the Employer's employees, and participation hereunder shall not affect benefits receivable under any such plan or system. Nothing contained in this Plan shall be deemed to constitute an employment contract or agreement 22 between any Participant and the Employer or to give any Participant the right to be retained in the employ of the Employer. Nor shall anything herein be construed to modify the terms of any employment contract or agreement between a Participant and the Employer. Article XII. Amendment or Termination of Plan The Employer may at any time amend this Plan provided that it transmits such amendment in writing to the Administrator at least 30 days prior to the effective date of the amendment. The consent of the Administrator shall not be required in order for such amendment to become effective, but the Administrator shall be under no obligation to continue acting as Administrator hereunder if it disapproves of such amendment. The Administrator may at any time propose an amendment to the Plan by an instrument in writing transmitted to the Employer at least 30 days before the effective date of the amendment. Such amendment shall become effective unless, within such 30 -day period, the Employer notifies the Administrator in writing that it disapproves such amendment, in which case such amendment shall not become effective. In the event of such disapproval, the Administrator shall be under no obligation to continue acting as Administrator hereunder. The Employer may at any time terminate this Plan. In the event of termination, assets of the Plan shall be distributed to Participants and Beneficiaries as soon as administratively practicable following termination of the Plan. Alternatively, assets of the Plan may be transferred to an eligible deferred compensation plan maintained by another eligible governmental employer within the same State if (a) all assets held by the Plan (other than Deemed IRAs) are transferred; (b) the receiving plan provides for the receipt of transfers; (c) the Participants and Beneficiaries whose deferred amounts are being transferred will have an amount immediately after the transfer at least equal to the deferred amount immediately before the transfer; and (d) the Participants or Beneficiaries whose deferred amounts are being transferred is not eligible for additional annual deferrals in the receiving plan unless the Participants or Beneficiaries are performing services for the employer maintaining the receiving plan. Except as may be required to maintain the status of the Plan as an eligible deferred compensation plan under Section 457(b) of the Code or to comply with other applicable laws, no amendment or termination of the Plan shall divest any Participant of any rights with respect to compensation deferred before the date of the amendment or termination. Article XIII. Applicable Law This Plan and Trust shall be construed under the laws of the state where the Employer is located and is established with the intent that it meet the requirements of an "eligible deferred compensation plan' under Section 457(b) of the Code, as amended. The provisions of this Plan and Trust shall be interpreted wherever possible in conformity with the requirements of that Section of the Code. In addition, notwithstanding any provision of the Plan to the contrary, the Plan shall be administered in compliance with the requirements of Section 414(u) of the Code. Article XIV. Gender and Number The masculine pronoun, whenever used herein, shall include the feminine pronoun, and the singular shall include the plural, except where the context requires otherwise. 23 DECLARATION OF TRUST This Declaration of Trust (the "Group Trust Agreement ") is made as of the 19th day of May, 2001, by VantageTrust Company, which declares itself to be the sole Trustee of the trust hereby created. WHEREAS, the ICMA Retirement Trust was created as a vehicle for the commingling of the assets of governmental plans and governmental units described in Section 818(a)(6) of the Internal Revenue Code of 1986, as amended, pursuant to a Declaration of Trust dated October 4, 1982, as subsequently amended, a copy of which is attached hereto and incorporated by reference as set out below (the "ICMA Declaration "); and WHEREAS, the trust created hereunder (the "Group Trust ") is intended to meet the requirements of Revenue Ruling 81- 100, 198 1 -1 C.B. 326, and is established as a common trust fund within the meaning of Section 391:1 of Title 35 of the New Hampshire Revised Statutes Annotated, to accept and hold for investment purposes the assets of the Deferred Compensation and Qualified Plans held by and through the ICMA Retirement Trust. NOW, THEREFORE, the Group Trust is created by the execution of this Declaration of Trust by the Trustee and is established with respect to each Deferred Compensation and Qualified Plan by the transfer to the Trustee of such Plan's assets in the ICMA Retirement Trust, by the Trustees thereof, in accord with the following provisions: (a) Incorporation of ICMA Declaration by Reference, ICMA By -Laws. Except as otherwise provided in this Group Trust Agreement, and to the extent not inconsistent herewith, all provisions of the ICMA Declaration are incorporated herein by reference and made a part hereof, to be read by substituting the Group Trust for the Retirement Trust and the Trustee for the Board of Trustees referenced therein. In this respect, unless the context clearly indicates otherwise, all capitalized terms used herein and defined in the ICMA Declaration have the meanings assigned to them in the ICMA Declaration. In addition, the By -Laws of the ICMA Retirement Trust, as the same may be amended from time -to -time, are adopted as the By -Laws of the Group Trust to the extent not inconsistent with the terms of this Group Trust Agreement. Notwithstanding the foregoing, the terms of the ICMA Declaration and By -Laws are further modified with respect to the Group Trust created hereunder, as follows: 1. any reporting, distribution, or other obligation of the Group Trust vis -a -vis any Deferred Compensation Plan, Qualified Plan, Public Employer, Public Employer Trustee, or Employer Trust shall be deemed satisfied to the extent that such obligation is undertaken by the ICMA Retirement Trust (in which case the obligation of the Group Trust shall run to the ICMA Retirement Trust); and 2. all provisions dealing with the number, qualification, election, term and nomination of Trustees shall not apply, and all other provisions relating to trustees (including, but not limited to, resignation and removal) shall be interpreted in a manner consistent with the appointment of a single corporate trustee. (b) Compliance with Revenue Procedure 81 -100. The requirements of Revenue Procedure 8 1 -100 are applicable to the Group Trust as follows: Pursuant to the terms of this Group Trust Agreement and Article X of the By -Laws, investment in the Group Trust is limited to assets of Deferred Compensation and Qualified Plans, investing through the ICMA Retirement Trust. 2. Pursuant to the By -Laws, the Group Trust is adopted as a part of each Qualified Plan that invests herein through the ICMA Retirement Trust. 3. In accord with the By -Laws, that part of the Group Trust's corpus or income which equitably belongs to any Deferred Compensation and Qualified Plan may not be used for or diverted to any purposes other than for the exclusive benefit of the Plan's employees or their beneficiaries who are entitled to benefits under such Plan. In accord with the By -Laws, no Deferred Compensation Plan or Qualified Plan may assign any or part of its equity or interest in the Group Trust, and any purported assignment of such equity or interest shall be void. (c) Governing Law. Except as otherwise required by federal, state or local law, this Declaration of Trust (including the ICMA Declaration to the extent incorporated herein) and the Group Trust created hereunder shall be construed and determined in accordance with applicable laws of the State of New Hampshire. (d) Judicial Proceedings. The Trustee may at any time initiate an action or proceeding in the appropriate state or federal courts within or outside the state of New Hampshire for the settlement of its accounts or for the determination of any question of construction which may arise or for instructions. IN WITNESS WHEREOF, the Trustee has executed this Declaration of Trust as of the day and year first above written. VANTAGETRUST COMPANY By: f4t'tz x'sevy(t Name: Paul E Gallagher Title: Secretary ICMA -R( Services LLC, a wholly owned broker - dealer subsidiary of ICMA -RC, member NASD /SIP(. icmARC ATTN: NEW BUSINESS UNIT ANALYST P.O. BOX 96220 WASHINGTON, DC 20090 -6220 1- 800 -669 -7400 WWW.ICMARC.ORG EN ESPANOL LLAME AL 1- 800 - 669 -8216 BKT000. 014 - 200610.454